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Split COA affirms suppression after faulty controlled drug buy

February 13, 2019

Police failure to search a party in a controlled drug buy in Muncie and a misleading affidavit to obtain a warrant were sufficient grounds to suppress evidence of cocaine subsequently found in a search of the home the buyer visited, the majority of an Indiana Court of Appeals panel found Wednesday.

Judges L. Mark Bailey and Elaine Brown affirmed the Delaware Circuit Court’s suppression of evidence in State of Indiana v. Dusten T. Vance,18A-CR-1746. Vance was charged with possession of cocaine and maintaining a common nuisance after police executed a search warrant and found drugs in his home. Police said they had probable cause for the warrant because a person law enforcement identified as “Target” had visited Vance’s home, then provided cocaine to a confidential informant who passed the drugs to police.

But Vance argued the warrant erroneously described him as “Target,” and he argued “Target” had not been searched, so the state conducted what was “really an uncontrolled buy.” The trial court agreed, suppressing the evidence and leading the state to dismiss the charges and bring this appeal. The COA majority then affirmed, finding the evidence obtained at Vance’s residence was seized in violation of his Fourth Amendment rights and properly suppressed.

The majority also rejected the state’s argument to extend a good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405 (1984) and Jaggers v. State, 687 N.E.2d 180, 184 (Ind. 1997). The majority found the warrant affidavit was too misleading.

“The good faith exception will not reward the creation of a misleading impression to avoid revealing the clear absence of probable cause,” Bailey wrote. “As the Court observed in Jaggers: ‘Leon’s rationale is not advanced by effectively allowing the State to claim good faith reliance on a warrant after a less than faithful effort to establish probable cause to obtain it.’ … The good faith exception ‘cannot save the illegally seized evidence’ in these circumstances.”

But Judge Cale Bradford would have reversed the suppression order based on the totality of circumstances, including that Vance’s residence was a known drug house previously involved in a Muncie SWAT search.

“This evidence leads to the common-sense and logical inference that the Residence was used as a place to store controlled substances. Therefore, the trial court had a substantial basis for concluding that probable cause existed before issuing the search warrant,” Bradford wrote.

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