MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Jun 26 2018, 6:43 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Borschel                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank Dangerfield,                                       June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1711-CR-2544
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1604-F2-14201



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018              Page 1 of 18
[1]   Frank Dangerfield appeals his conviction for dealing in a narcotic drug as a

      level 2 felony and the enhancement of his sentence pursuant to an adjudication

      that he is an habitual offender. Dangerfield raises one issue which we revise

      and restate as whether the court abused its discretion by admitting evidence

      obtained as a result of Dangerfield’s arrest. We affirm.


                                      Facts and Procedural History

[2]   Detective Scott Wolfe of the Indianapolis Metropolitan Police Department

      (“IMPD”) was assigned to the Metro Drug Task Force and began an

      investigation into an individual who would eventually be identified as

      Dangerfield sometime in the spring of 2016. Between March 7 and March 9,

      2016, police arranged a controlled purchase of heroin through a confidential

      informant (“CI”) with whom working had “led to the seizure of drugs in the

      past as well as the arrest and conviction of people for drug crimes.” Transcript

      Volume 2 at 16. After being “set up . . . with . . . recording equipment” and

      being provided with “pre-recorded IMPD buy money,” the CI traveled to a pre-

      determined location established with the individual later identified as

      Dangerfield and purchased what was later tested to be heroin. Id. at 17.

      Following the purchase, the CI met with Detective Wolfe and gave him the

      heroin. Detective Wolfe reviewed video obtained by the CI and identified the

      person who sold the heroin as Dangerfield, someone who had grown up in the

      area that Detective Wolfe had originally patrolled and who had been arrested

      by him in the past.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 2 of 18
[3]   In preparation for a second controlled purchase which was also conducted in

      March 2016, Detective Wolfe researched Dangerfield and discovered that he

      was on home detention and obtained the details of his home detention.

      Surveillance units monitored Dangerfield’s residence. Once the second

      controlled purchase commenced, detectives reported to Detective Wolfe that

      they observed Dangerfield exit the residence, enter a vehicle, and head to meet

      the CI at the arranged location. Similar to the first controlled purchase, the CI

      was provided pre-recorded money. Audio and video surveillance was collected

      on the purchase which further “demonstrated that [it] was in fact [Dangerfield]

      that was conducting [the purchase].” Id. at 22. Officers met with the CI after

      the purchase and recovered the suspected heroin, which later tested positive.


[4]   Detective Wolfe coordinated a third controlled purchase in April 2016, where

      the CI placed a telephone call to Dangerfield and the same procedure was

      followed with regards to the CI being provided purchase money. The purchase

      was also captured on audio and video recording and the CI brought the

      acquired substance to officers after meeting with Dangerfield, which also tested

      positive for heroin. During the third purchase, Dangerfield was driving a “sort

      of a greenish-grey Chrysler 300.” Id. at 23.


[5]   On April 13, 2016, officers from the Metro Drug Task Force arrived at

      Dangerfield’s residence, intending to “[m]ake an outright arrest.” Id. at 24. As

      they arrived, they parked away from the residence. Dangerfield exited the

      house with his wife and walked to a green Chrysler 300 parked in the driveway.

      Officers identified Dangerfield, drove “right up in the driveway,” exited their

      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 3 of 18
      vehicles and moved towards the house as Dangerfield approached the Chrysler,

      identified themselves as police officers, and told Dangerfield “at that time” to

      place his hands in the air. Id. at 77, 110. Dangerfield responded by backing

      away toward the garage and moved to the front bumper of the Chrysler, which

      faced the garage. He then reached into the front part of his blue jeans, ducked

      down, and placed a “clear plastic baggie with a grayish substance” on the

      ground that was recognized by Detective Wolfe as “suspected heroin.” Id. at

      77, 81. After starting to stand, Dangerfield reached again into his waistband,

      and removed and placed a “little over forty-seven hundred dollars” “made

      mainly of twenties” on the hood of the car. Id. at 81. An officer placed

      Dangerfield in handcuffs, moved him into the front yard of the residence,

      patted him down, checked his pockets, and located an additional bag of heroin,

      two cellular phones, a lighter, and additional U.S. currency. At some point,

      Dangerfield attempted to step on the bag of heroin pulled from his pocket.


[6]   After Detective Wolfe was notified of the search of Dangerfield’s person and

      the discovered contraband, he explained to Dangerfield why the officers were

      present at his residence, advised him of his rights, and obtained the signatures

      of Dangerfield and his wife on a standard IMPD consent to search form,

      allowing officers to search the residence. While officers entered the house using

      keys recovered from Dangerfield, Detective Wolfe interviewed Dangerfield.

      Officers found, among other items, “over three thousand dollars” “largely made

      up of . . . twenty dollar bills” in a pair of men’s sweat pants in what was

      established as the residence’s master bedroom; a digital scale, a hammer, a


      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 4 of 18
      “Magic Bullet type blender grinder,” and a bottle of “cut,” or a “substance that

      you would mix with the heroin like . . . more of the product” to sell and “make

      more money”, on the counter to the right of the sink between the sink and the

      refrigerator in the kitchen; a box of plastic baggies in the drawer directly below

      the area where the digital scale and bottle of “cut” substance were located and

      “right next to the suspected narcotics”; and a hydraulic press at the back left

      corner of the garage and a bag “just left of the press” with a box of ammunition

      and “another small baggie of suspected narcotics” inside. Id. at 87, 89, 117,

      120, 135.


[7]   On April 15, 2016, Detective Wolfe completed an affidavit for probable cause.

      The same day, the State charged Dangerfield with three counts of dealing in a

      narcotic drug as level 2 felonies, one count of possession of a narcotic drug as a

      level 3 felony, two counts of possession of a narcotic drug as level 4 felonies,

      unlawful possession of a firearm by a serious violent felon, a level 4 felony, and

      possession of cocaine as a level 5 felony. On May 5, 2017, the State filed a

      motion to dismiss, asking to dismiss two counts of dealing in a narcotic drug as

      level 2 felonies and the two counts of possession of a narcotic drug as level 4

      felonies, which the court granted. The court also dismissed the single count of

      unlawful possession of a firearm by a serious violent felon upon motion by the

      State.


[8]   On August 29, 2017, the court held a jury trial. Prior to trial, the court

      addressed preliminary matters, and Dangerfield’s counsel asked to suppress the

      evidence obtained on April 13, 2016, and argued that the detectives lacked

      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 5 of 18
probable cause to stop Dangerfield and his wife. In response, the State

presented testimony of Detective Wolfe regarding the three foregoing controlled

purchases. Detective Wolfe testified that the general procedure taken to prepare

informants to conduct controlled purchases involved searching the vehicle and

the informant before sending the informant down to conduct the purchase and

sometimes placing a call “down to the target” which would be recorded. Id. at

17. He also testified that, at the point where he “ha[d] three buys on

[Dangerfield],” he knew that Dangerfield had been sentenced, was on home

detention for dealing, and that “[d]ealing in narcotics would be a violation of

[Dangerfield’s] community correction sentence.” Id. at 24. After cross-

examining Detective Wolfe, Dangerfield’s defense counsel stated that, if it was

his intention to arrest Dangerfield on April 13, 2016, Detective Wolfe should

have sought an arrest warrant from a judicial officer because all three controlled

purchases occurred prior to the arrest date. Counsel for the State responded in

part, “[t]here’s no requirement that they get a warrant unless he’s holed up in a

house somewhere. Here the arrest was made as [Dangerfield] was leaving his

home.” The court, in finding that Detective Wolfe had probable cause to arrest

Dangerfield for a felony, stated:


        I think based on all of the circumstances that was known to
        Detective Wolfe, based on the three previous [purchases] I don’t
        find that they were so remote in time as to perhaps lose their
        value in terms of – of – lose their probative value. All of the
        circumstances surrounding those [purchases] including
        knowledge of Detective Wolfe and including the audio and video
        recordings of that. I don’t think there’s anything in the law that I


Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 6 of 18
                am aware of that would mandate that the – the behavior or the
                offense occurred at the time or directly before the time of arrest. [1]


       Id. at 31-32.


[9]    Detective Wolfe testified at trial that, when he interviewed him, Dangerfield

       admitted the quantity of the money recovered from the hood of the car was

       about forty-seven hundred dollars, that officers had recovered heroin on the

       ground in front of the car in the quantity of “over forty grams” and from his

       pocket, and that he had been currently selling heroin at about fifty dollars per

       gram. Id. at 92. He also indicated that he recognized the contents of the bag

       that Dangerfield had placed on the ground as “suspected heroin” based on his

       training and experience as a narcotics detective. Id. at 81. He testified that the

       garage was “an attached garage, which is part of the home,” when asked if

       Dangerfield and his wife consented to the search of the garage. Id. at 98.


[10]   IMPD Detective Randall Dings testified, when asked what happened after

       Dangerfield exited the house, that “[a]s we pulled up, I made eye contact with

       [Dangerfield]. And he just kind of looked at us. Did a little head tilt to try to

       figure out who we – what we were doing.” Id. at 110-111. In response to being

       asked, “as you all got out and headed up towards [Dangerfield], what happened

       next,” he stated:




       1
        Dangerfield’s counsel asked to certify the ruling with this Court, and the trial court responded that it would
       “deny that motion in terms of an Interlocutory request.” Transcript Volume 2 at 32.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018                Page 7 of 18
                Detective Wolfe and Detective Graber were giving him
                commands. Detective Graber made contact – and Wolfe made
                contact with [Dangerfield]. I observed – originally I observed
                [Dangerfield] kind of bend down a little bit but I couldn’t see
                what he was doing. And he stood up as they got to him. And
                then I saw him set a large amount of cash on the hood of the car.


       Id. at 111. He also indicated that plastic baggies, while common to have in a

       normal kitchen, are typically used as a “a way to package the narcotics for

       sale.” Id. at 120.


[11]   IMPD Detective Ryan Graber testified that he arrived at the scene on April 13,

       2016, and was involved in the search of the garage of the residence. He also

       testified that hydraulic presses were commonly known to narcotics detectives

       through experience as items used to re-press narcotics.


[12]   The court admitted into evidence, over objection, the State’s photographs of

       items discovered that day, as well as the Consent to Search form signed by

       Dangerfield and his wife as State’s Exhibit 5 and photographs of the residence.


[13]   The jury found Dangerfield guilty of dealing in a narcotic drug as a level 2

       felony and not guilty of possession of cocaine as a level 5 felony.2 The court

       found Dangerfield to be an habitual offender and sentenced him to twenty years




       2
        The jury also found Dangerfield guilty of possession of a narcotic drug as a level 4 felony, but the court
       vacated the judgment at the State’s request.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018                Page 8 of 18
       for dealing in a narcotic drug as a level 2 felony enhanced by six years for being

       an habitual offender.


                                                   Discussion

[14]   The issue is whether the trial court abused its discretion in admitting the

       evidence obtained as the result of Dangerfield’s arrest. Although Dangerfield

       originally challenged the admission of the evidence through a motion to

       suppress, he now challenges the admission of the evidence at trial. Thus, the

       issue is appropriately framed as whether the trial court abused its discretion by

       admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind. Ct. App.

       2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App.

       2005).


[15]   “Because the trial court is best able to weigh the evidence and assess witness

       credibility, we review its rulings on admissibility for abuse of discretion and

       reverse only if a ruling is ‘clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights.’” Carpenter v.

       State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252,

       260 (Ind. 2013)). “[T]he ultimate determination of the constitutionality of a

       search or seizure is a question of law that we consider de novo.” Id. Even if the

       trial court’s decision was an abuse of discretion, we will not reverse if the

       admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.

       Ct. App. 1999), reh’g denied, trans. denied. We may affirm a trial court’s decision

       to admit evidence seized as a result of the search based on any legal theory

       supported by the record. Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002);
       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 9 of 18
       Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000). In ruling on admissibility

       following the denial of a motion to suppress, the trial court considers the

       foundational evidence presented at trial. Carpenter, 18 N.E.3d at 1001. If the

       foundational evidence at trial is not the same as that presented at the

       suppression hearing, the trial court must make its decision based upon trial

       evidence and may consider hearing evidence only if it does not conflict with

       trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1 (Ind. 2014).


[16]   Dangerfield argues that the police lacked probable cause for his arrest and that

       his rights under the Fourth Amendment of the United States Constitution and

       Article 1, Section 11 of the Indiana Constitution were violated when he was

       “arrested without benefit of a warrant and no crime was in progress.”3

       Appellant’s Brief at 10.


       A. Fourth Amendment


[17]   The Fourth Amendment to the United States Constitution provides, in

       pertinent part: “[t]he right of people to be secure in their persons, houses,

       papers, and effects, against unreasonable searches and seizures, shall not be




       3
         To the extent that Dangerfield claims his Sixth Amendment confrontation rights were violated, we note that
       this Court does not address constitutional arguments which are raised for the first time on appeal. See
       Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49,
       53 (Ind. 2013) (“Declining to review an issue not properly preserved for review is essentially a cardinal
       princip[le] of sound judicial administration.” (internal quotation omitted))). Waiver notwithstanding, the
       record reveals that the CI did not testify at trial and Dangerfield did not attempt to subpoena the CI as a
       witness. Under the circumstances, we cannot say that Dangerfield’s Sixth Amendment confrontation rights
       were violated.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018                Page 10 of 18
       violated . . . .” U.S. CONST. amend. IV. If the search is conducted without a

       warrant, the State bears the burden to show that one of the well-delineated

       exceptions to the warrant requirement applies. Osborne v. State, 63 N.E.3d 329,

       331 (Ind. 2016). The United States Supreme Court has held that “the

       warrantless arrest of an individual in a public place upon probable cause [does]

       not violate the Fourth Amendment.” United States v. Santana, 427 U.S. 38, 42

       96 S. Ct. 2406, 2409 (1976) (citing United States v. Watson, 423 U.S. 411 [96 S.

       Ct. 820] (1976)). See also Sears v. State, 668 N.E.2d 662, 666-667 (Ind. 1996) (“It

       is equally well settled that a police officer may arrest a suspect without a

       warrant if that officer has probable cause to believe that the suspect has

       committed a felony.”).


[18]   Probable cause to arrest arises when, at the time of the arrest, the arresting

       officer has knowledge of facts and circumstances which would warrant a person

       of reasonable caution to believe that the defendant committed the criminal act

       in question. Thomas v. State, 81 N.E.3d 621, 626 (Ind. 2017) (citing Sears, 668
N.E.2d at 667 (citing Green v. State, 461 N.E.2d 108, 112 (Ind. 1984))). The

       amount of evidence necessary to satisfy the probable cause requirement for a

       warrantless arrest is evaluated on a case-by-case basis. Id. (citing Peterson v.

       State, 674 N.E.2d 528, 536 (Ind. 1996), reh’g denied, cert. denied, 522 U.S. 1078,

       118 S. Ct. 858 (1998)). Rather than requiring a precise mathematical

       computation, probable cause is grounded in notions of common sense. Id.

       (citing Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998) (citing Illinois v. Gates,

       462 U.S. 213, 235-236, 103 S. Ct. 2317 (1983))). The evidence required to

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 11 of 18
       establish guilt is not necessary for probable cause for an arrest to exist. Decker v.

       State, 19 N.E.3d 368, 377 (Ind. Ct. App. 2014) (quoting Roberts v. State, 599
N.E.2d 595, 598 (Ind. 1992), reh’g denied), trans. denied. The existence of

       probable cause is a fact-sensitive determination. Id. (citing Kelly v. State, 997
N.E.2d 1045, 1051 (Ind. 2013)).


[19]   To effect a lawful arrest, police needed to have probable cause to believe that

       Dangerfield dealt in a narcotic drug as defined by Indiana law. See id. At the

       time of the offense, Ind. Code § 35-48-4-1(a)(2) governed the dealing of narcotic

       drugs and provided in relevant part that a person who “possesses, with intent to

       . . . manufacture[,] finance the manufacture of[,] deliver[,] or finance the

       delivery of . . . cocaine or a narcotic drug, pure or adulterated, classified in

       schedule I or II . . . commits dealing in a narcotic drug . . . .” (Subsequently

       amended by Pub. L. No. 44-2016, § 2 (eff. July 1, 2016)). Ind. Code § 35-48-4-

       1(e) provided at the time of the offense that the offense be considered a level 2

       felony if “the amount of the drug involved is at least ten (10) grams.”

       (Subsequently amended by Pub. L. No. 44-2016, § 2 (eff. July 1, 2016)).


[20]   Dangerfield contends that the trial court abused its discretion by failing to

       suppress the evidence obtained during the warrantless arrest, and that the

       proper result should be suppression of “all the evidence stemming from

       [Dangerfield’s] arrest.” Appellant’s Brief at 16. He asserts that Detective Wolfe

       led a squad of detectives and officers to Dangerfield’s residence without an

       arrest warrant and saw no drug distribution or other crime in progress when the

       police approached him. He states that “[a]rguendo, in [this] case, the totality of

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 12 of 18
       requisite facts and circumstances supporting probable cause seem to exist to

       support Judge Gooden’s finding.” Id. at 13 (citing Appellant’s Appendix

       Volume 2 at 21-24; Transcript Volume 2 at 16-24, 32, 36). He continues to

       argue, “[h]owever, that determination is negated by the fact that the charges

       directly associated with the controlled [purchases] creating [Detective] Wolfe’s

       probable cause were dismissed.” Id. In his reply brief, Dangerfield contends

       that he was not arrested in a public place nor did he forsake a reasonable

       expectation of privacy because he was arrested in his driveway, or “arguably

       within the ambit of his home’s curtilage, which is an area usually protected

       from warrantless searches.” Appellant’s Reply Brief at 6-7 (quoting BLACK’S

       LAW DICTIONARY 411-412 (8th ed. 2004) (quoting C.J.S. §§ 36, 71)).


[21]   The State argues that the police had probable cause to arrest Dangerfield and

       properly conducted a warrantless arrest of him in a public place, namely, the

       driveway outside of his home. Specifically, the State argues that the three

       controlled purchases of heroin conducted since March 7, 2016, provided ample

       probable cause and that its exercise of discretion in charging Dangerfield is

       irrelevant to the existence of probable cause at the time of his arrest.


[22]   To the extent that Dangerfield argues that the trial court’s probable cause

       determination is negated because “the charges directly associated with the

       controlled [purchases] creating [Detective] Wolfe’s probable cause were

       dismissed,” we observe that the Indiana Supreme Court has held that the “facts

       and circumstances of which the arresting officer has knowledge that give him

       probable cause to believe a crime has been committed, need not be the same

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 13 of 18
       crime with which the defendant is ultimately charged.” Moody v. State, 448
N.E.2d 660, 663 (Ind. 1983).


[23]   With respect to whether Detective Wolfe and other police officers had probable

       cause, the record reveals that the police arranged three different controlled

       purchases of heroin from Dangerfield through the CI, who, each time, was

       provided with pre-recorded purchase money and recording equipment, travelled

       to pre-determined locations, and captured audio or video footage of the

       purchase. Detective Wolfe reviewed footage of the purchases, identified

       Dangerfield as the person who had sold the heroin to the CI, and researched

       and discovered that Dangerfield was on home detention, as well as the relevant

       details of the home detention. As the officers approached Dangerfield on April

       13, 2016, outside of his residence he had exited, he reached into his jeans to

       place a clear plastic baggie with a grayish substance that was recognized as

       “suspected heroin” on the ground and removed and placed a “little over forty-

       seven hundred dollars,” comprised of twenty-dollar bills, on the hood of the car.

       Id. at 81. Based upon the record, we conclude that Detective Wolfe and other

       police officers had probable cause to arrest Dangerfield. Accordingly, we

       cannot say Dangerfield’s arrest violated the Fourth Amendment to the United

       States Constitution.


       B. Article 1, Section 11


[24]   Article 1, Section 11 of the Indiana Constitution provides:




       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 14 of 18
               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.


[25]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson

       v. State, 5 N.E.3d 362, 368 (Ind. 2014) (quoting State v. Washington, 898 N.E.2d
1200, 1205-1206 (Ind. 2008), reh’g denied). “When a defendant raises a Section

       11 claim, the State must show the police conduct ‘was reasonable under the

       totality of the circumstances.’” Id. “The focus of the exclusionary rule under

       the Indiana Constitution is the reasonableness of police conduct.” Hardister v.

       State, 849 N.E.2d 563, 573 (Ind. 2006). “We consider three factors when

       evaluating reasonableness: ‘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.’” Robinson, 5 N.E.3d at 368 (quoting Litchfield v.

       State, 824 N.E.2d 356, 361 (Ind. 2005)).


[26]   Dangerfield argues that the three reasonableness factors established in Litchfield

       v. State, 824 N.E.2d 356 (Ind. 2005), require that “police should have obtained a

       warrant instead of relying on information from a Confidential Informant

       wholly unrelated to the conduct charged in this case.” Appellant’s Reply Brief

       at 8. The State contends that Dangerfield’s argument is waived for failure to


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 15 of 18
       present it below and argues that the police conduct was eminently reasonable as

       police had probable cause for Dangerfield’s arrest from the proper execution of

       three controlled purchases of heroin that were audio and video recorded.


[27]   We note that the entirety of Dangerfield’s argument regarding the

       reasonableness factors under Article 1, Section 11, of the Indiana Constitution

       appears initially in his reply brief. Though he mentions both the Fourth

       Amendment and Article 1, Section 11, in his principal brief, he fails to provide

       an independent analysis of the reasonableness factors under the Indiana

       Constitution until his reply brief. Issues are waived if raised for the first time in

       a reply brief. Sisson v. State, 985 N.E.2d 1, 14 n.8 (Ind. Ct. App. 2012) (quoting

       Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011)), trans. denied. See also Decker,
19 N.E.3d at 375 n.3 (“Failure to make a cogent argument under the Indiana

       Constitution constitutes waiver of the issue on appeal.”) (citing Abel v. State, 773
N.E.2d 276, 278 n.1 (Ind. 2002)).


[28]   Notwithstanding any issues of waiver, we cannot agree with Dangerfield to the

       extent that he argues that the police conduct was not reasonable under the

       totality of the circumstances. To the extent that he does argue reasonableness

       factors, he asserts that the degree of concern, suspicion, or knowledge that a

       violation has occurred is tainted “by the fact that [Dangerfield] was already

       under surveillance on April 13, 2016, and that no criminal activity was

       observed independently by police contemporaneous to the time he was arrested

       at his home without a warrant”; that the degree of intrusion the method of the

       search or seizure imposes on the citizen’s ordinary activities was “total”

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 16 of 18
       because he was “removed from his home and taken into custody”; and, that the

       extent of law enforcement needs to make a warrantless arrest was “minimal, at

       best” because the investigation lasted over a month. Id. at 7-8.


[29]   The record reveals that, with respect to both the degree of concern, suspicion, or

       knowledge that a violation had occurred and the extent of law enforcement

       needs, police conducted three controlled purchases of heroin from Dangerfield,

       who was identified by Detective Wolfe after reviewing video and audio footage

       which had been recorded by the CI. The record also reveals that the degree of

       intrusion on Dangerfield’s ordinary activities was not high. Officers arrived at

       the residence where Dangerfield was serving home detention and parked away

       from the residence. He eventually exited the house and walked to a green

       Chrysler 300 parked in the driverway. When officers approached him and

       identified themselves, Dangerfield backed away toward the garage and moved

       to the front bumper of the Chrysler; reached into the front part of his blue jeans,

       ducked down, and placed on the ground a “clear plastic baggie with a grayish

       substance” which Detective Wolfe recognized as “suspected heroin” based on

       his training and experience; and, after starting to stand, reached again into his

       waistband, and removed and placed a “little over forty-seven hundred dollars”

       “made mainly of twenties” on the hood of the car. Transcript Volume 2 at 77,

       81, 92.


[30]   Under these circumstances, we conclude that Dangerfield’s rights against

       unreasonable search and seizure under Article 1, Section 11 of the Indiana



       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 17 of 18
       Constitution were not violated. Accordingly, we cannot say that the trial court

       abused its discretion.


                                                   Conclusion

[31]   For the foregoing reasons, we affirm Dangerfield’s conviction.


[32]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CR-2544 |June 26, 2018   Page 18 of 18