Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

James A. Edgar

J. Edgar Law Offices, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon T. Smith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 10, 2019

Court of Appeals Case No.

18A-CR-1042

Appeal from the Marion Superior 

Court

The Honorable Alicia A. Gooden, 

Judge

Trial Court Cause No.

49G21-1609-F2-35459

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019 Page 2 of 13

Statement of the Case

[1] Brandon T. Smith appeals his conviction for possession of a narcotic drug, as a 

Level 3 felony, and his adjudication as a habitual offender. He presents three 

issues for our review:

1. Whether the trial court erred when it admitted into 

evidence items seized pursuant to an allegedly stale search 

warrant.

2. Whether the trial court erred when it admitted into 

evidence his statement to police, which he alleges was not 

voluntary.

3. Whether the trial court abused its discretion when it 

prohibited him from asking certain questions on crossexamination of a police officer.

[2] We affirm.

Facts and Procedural History

[3] In April 2016, Indianapolis Metropolitan Police Department Detective Jason 

Hart began an investigation of suspected drug dealing by Smith and Smith’s

associate Kierre Washington. Detective Hart was also acting as a Task Force 

Officer with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives

(“ATF”). Members of the Task Force conducted several controlled heroin buys 

between Smith and a confidential informant (“CI”) between April 14 and 

August 31. Detective Hart observed Smith and Washington using a “stash 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1042 | January 10, 2019 Page 3 of 13

house”1located at 6451 Bay Harbor Lane in Indianapolis, where Smith would 

stop before each controlled buy with the CI. Tr. Vol. 2 at 227. In August, 

Detective Hart obtained a GPS warrant, which permitted him to place a GPS 

tracking device on a white pickup truck driven by Smith. Through surveillance, 

Detective Hart learned that Smith drove to the stash house more than fifty 

times between August 3 and September 7.

[4] On August 31, ATF Special Agent Launa Hunt applied for a search warrant 

from the United States District Court for the Southern District of Indiana. In 

her affidavit submitted in support of the warrant, Special Agent Hunt described 

the controlled buys between Smith and the CI as well as Smith’s use of the 

residence at 6451 Bay Harbor as a stash house for his heroin trafficking 

activities. Special Agent Hunt also stated that Smith and Washington were the 

only people who had unrestricted access to the residence. Further, during 

August 2016, a second CI contacted investigators to report that Smith and 

Washington were working together to sell narcotics and that they had used the 

residence at 6451 Bay Harbor as a stash house. On August 31, the court issued 

the search warrant for the residence.

[5] During the evening of September 6, officers saw Smith arrive at the residence, 

and they saw him leave early the next morning, on September 7. After Smith 

left, IMPD officers conducted a traffic stop, arrested Smith, and drove him to 

 

1

 Detective Hart explained that a “stash house” is a house where drug dealers do not reside but where they 

keep narcotics and firearms. Tr. Vol. 2 at 227.
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the IMPD gun range, which was a nearby isolated location. Officers wanted to 

question him in a location where no one could see that he was talking with law 

enforcement. Detective Hart and Detective Andrew Deddish read Smith his 

Miranda rights and questioned him about selling drugs. Smith ultimately 

admitted that he had sold cocaine and heroin, but he denied any connection to 

the stash house other than as a visitor. In the meantime, officers executed the 

search warrant at the residence, where they found approximately two ounces of 

heroin, three firearms, two pills containing methamphetamine, baggies, three 

digital scales, hypodermic needles, $510 in cash, and strips of fentanyl. Officers 

also found personal items addressed to Smith, as well as photographs of Smith.

[6] The State charged Smith with dealing in a narcotic drug, as a Level 2 felony; 

possession of a narcotic drug, as a Level 3 felony; and with being a habitual 

offender. Prior to trial, Smith filed two motions to suppress the evidence. In 

his first motion to suppress, Smith alleged that his statement to police was not 

voluntary. In his second motion to suppress, he alleged that there was no 

probable cause to support the warrant, including that any probable cause had 

become stale because the officers waited eight days to execute the warrant. The 

trial court denied both motions to suppress. A jury found Smith guilty of 

possession of a narcotic drug, as a Level 3 felony, and adjudicated him to be a 

habitual offender, but the jury acquitted him of dealing in a narcotic drug. The 

trial court entered judgment of conviction accordingly and sentenced Smith to 

twenty-five years executed. This appeal ensued.
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Discussion and Decision

Issue One: Search Warrant

[7] Smith first contends that the trial court erred when it admitted into evidence 

items seized pursuant to the search warrant, which, he contends, was not 

supported by probable cause at the time of execution.2 Because Smith alleges a 

constitutional violation, the proper standard of appellate review is de novo. See 

Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013).

[8] The Fourth Amendment to the United States Constitution and Article 1, 

Section 11 of the Indiana Constitution both require probable cause for the 

issuance of a search warrant. Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct. 

App. 2008), trans. denied. In Huffines v. State, we explained that

“‘[p]robable cause is a fair probability that contraband or 

evidence of a crime will be found in the location to be searched.” 

[United States v.] LaMorie, 100 F.3d [547,] 552[ (8th Cir. 1996)]. 

We determine probable cause “under a totality-of-thecircumstances approach.” Id. at 553. A delay in executing a 

search warrant may render stale the probable cause finding. 

United States v. Maxim, 55 F.3d 394, 397 (8th Cir.), cert. denied, 

516 U.S. 903, 116 S. Ct. 265, 133 L. Ed. 2d 188 (1995). 

Important factors to consider in determining whether probable 

cause has dissipated, rendering the warrant fatally stale, include 

the lapse of time since the warrant was issued, the nature of the 

 

2

 Smith makes no contention that the search warrant was not supported by probable cause at the time it was 

issued.
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criminal activity, and the kind of property subject to the search.

Id.”

739 N.E.2d at 1096 (quoting United States v. Gibson, 123 F.3d 1121, 1124 (8th 

Cir. 1997)).

[9] Smith maintains that the facts and circumstances underlying the search warrant 

officers executed at the stash house are analogous to those in Huffines. In 

Huffines, officers conducted a single controlled drug buy three days prior to the 

issuance of a search warrant for defendant’s residence, and officers waited eight 

days after the warrant’s issuance to search the home. The trial court denied the 

defendant’s motion to suppress. On appeal, we acknowledged that the officers 

had executed the warrant within the ten-day window provided by Indiana Code 

Section 35-33-5-7(b) (2018), but we stated that “the fact that the search did not 

violate the statute does not address Huffines’ separate constitutional 

arguments” that the probable cause supporting the search warrant had 

dissipated by the time of execution. Id. at 1095 (citing Jaggers v. State, 687 

N.E.2d 180, 183 (Ind. 1997)).

[10] In Huffines, we distinguished Gibson, where police had waited four days after 

issuance to execute a search warrant. The district court in Gibson denied the 

defendant’s motion to suppress, having “concluded that the confidential 

informant’s statements about drug trafficking activity at the [defendant’s]

apartment and the traffic in and out of the apartment were sufficiently 

indicative of continued drug dealing to provide probable cause at the time the 

warrant was issued.” 123 F.3d at 1125. On appeal, the Eighth Circuit affirmed 
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the district court, noting that, “[b]ecause continuing criminal activity was 

suspected and corroborated, probable cause did not dissipate in the four days 

that lapsed between the time the state court issued the warrant and its 

execution.” Id. (emphasis added).

[11] In contrast, in Huffines, we held that the probable cause supporting the search

warrant had dissipated by the time of execution. In particular, we observed that

[t]he State presented no evidence that the police conducted 

surveillance of Huffines’ residence between the time the warrant 

was issued and when it was executed. The State did not present 

evidence regarding any increase or decrease in traffic to and from 

Huffines’ home or any evidence indicating on-going drug 

activity.

Utilizing the totality of the circumstances approach of the federal 

courts, we conclude that the State has failed to demonstrate that 

continuing criminal activity was suspected and corroborated. As 

such, probable cause dissipated in the eight days that lapsed 

between the time of the warrant’s issuance and the search of 

Huffines’ home. Therefore, when the police conducted the 

search, they did so based upon a warrant not supported by 

probable cause.

Huffines, 739 N.E.2d at 1097.

3

[12] The totality of the circumstances underlying the search warrant for Smith’s 

stash house are distinguishable from those in Huffines. In Huffines, officers 

 

3

 As in Huffines, here there is no meaningful difference between our analyses under the federal and state 

constitutions.
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conducted a single controlled buy. Here, officers conducted multiple controlled 

buys over the course of several months. Further, the State presented evidence 

that Smith had visited the stash house more than fifty times in a single month, 

and Smith had stopped by the stash house before the controlled buys. A second 

confidential informant stated that Smith and Washington used the stash house 

in the course of dealing drugs. And Smith spent the night at the stash house the 

night before officers executed the search warrant. In short, the State presented 

ample evidence of an ongoing drug dealing enterprise such that the search 

warrant was supported by probable cause at the time it was executed eight days 

after issuance. See Gibson, 123 F.3d at 1125; see also, e.g., Bigler v. State, 602 

N.E.2d 509, 516 (Ind. Ct. App. 1992) (holding information in probable cause 

affidavit was not stale where last known act of distribution had occurred 

twenty-one days before warrant issued and where facts showed ongoing drug 

dealing for two years), trans. denied. Accordingly, the trial court did not err 

when it admitted into evidence items seized pursuant to the search warrant. 

Issue Two: Statement

[13] Smith contends that the trial court erred when it admitted into evidence his 

statement to police. He maintains that his statement was not voluntary. Again, 
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because Smith alleges a constitutional violation, our review is de novo.

4

 See 

Speers, 999 N.E.2d at 852.

“A waiver of one’s Miranda rights occurs when a defendant, after 

being advised of those rights and acknowledging an 

understanding of them, proceeds to make a statement without 

taking advantage of those rights.” Crain v. State, 736 N.E.2d 

1223, 1230 (Ind. 2000). The State has the burden to prove 

beyond a reasonable doubt that the waiver was made knowingly 

and voluntarily. Horan v. State, 682 N.E.2d 502, 509 (Ind. 1997).

To be admissible, a suspect’s confession must also be voluntarily 

given. Carter v. State, 686 N.E.2d 1254, 1258 (Ind. 1997). A 

confession is voluntary if it is the product of a rational intellect 

and not the result of physical abuse, psychological intimidation, 

or deceptive interrogation tactics that have overcome the 

defendant’s free will. A.A. v. State, 706 N.E.2d 259, 262 (Ind. Ct. 

App. 1999). Under the United States Constitution, the State 

must prove by a preponderance of the evidence that the 

defendant’s confession was voluntary. Clark v. State, 808 N.E.2d 

1183, 1191 (Ind. 2004).

Palilonis v. State, 970 N.E.2d 713, 732 (Ind. Ct. App. 2012), trans. denied.

[14] Smith asserts that, during his interview, the officers both threatened him and 

made promises of leniency, which rendered his statement involuntary.5 In 

 

4

 Smith does not clearly state whether he claims a constitutional violation under the federal or state 

constitutions, or both. He mentions the Fifth Amendment to the United States Constitution at one point, so 

we will address his claim under the federal constitution.

5

 For the first time on appeal, Smith maintains that the location of his interview, in a police car at the IMPD 

gun range with guns being fired nearby, along with the tightness of the handcuffs, which the officers did not 

loosen until one-and-one-half hours had transpired after his arrest, also rendered his confession involuntary. 

But Smith did not ask to go to a different location or express any concern about the gun range. And Smith 

does not direct us to any evidence that he had expressed discomfort as a result of the handcuffs before the 
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support of his contention, Smith summarizes the offending statements by the 

officers during his interview as follows:

“[Defendant] faces a crapload of time in Federal jail.”

“quite a bit of Federal time.”

“you are looking at a significant amount of time.”

“significant portion of your life in penitentiary”

“He’ll be joining you in Federal prison.”

“When I play those videos to [the] Federal jury . . . “

“You are screwed in Federal Court with your criminal history.”

“We have the ability to take all the assets.”

“If we go to the prosecutor and we say: “He is willing to play 

ball, there is a way you walk away from this.”

“And another kicker that factors into that in the federal side of 

things on the onset right now – we would need to go over 

specifically your involvement within this and you need to take 

responsibility for it and acknowledge your participation to the 

point where we can say you cooperated in that way. Because 

actually that helps you in the federal system. You get 

consideration for that. They can knock points off. Everything in 

the federal system is on the points system.”

 

officers loosened them. In any event, it is well settled that a defendant cannot make an argument for the first 

time on appeal. See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999).
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Appellant’s Br. at 19-20.

[15] It is true that a confession is inadmissible if obtained by a promise of immunity 

or mitigation of punishment. Collins v. State, 509 N.E.2d 827, 830 (Ind. 1987).

However, vague and indefinite statements by the police about it being in the 

best interest of the defendant for him to tell the real story or cooperate with the 

police are not sufficient inducements to render a subsequent confession 

inadmissible. Id. Implied promises are too indefinite to render a confession 

involuntary. Id.

[16] Here, the officers’ statements to Smith that he faced a considerable amount of 

jail time and might get leniency for his cooperation were too vague and 

indefinite to render his confession involuntary. See Higgins v. State, 562 N.E.2d 

770, 771 (Ind. Ct. App. 1990) (holding confession voluntary where officer told 

defendant “the one that cooperates the most” would get the “best deal” from 

the prosecutor); see also, e.g., Lord v. State, 531 N.E.2d 207, 209 (Ind. 1988) 

(holding confession voluntary where police officer asked, “[I]f I could get [the 

prosecutor] down here, would you tell the truth, if he’d cut you a deal?”); Neal 

v. State, 522 N.E.2d 912, 913 (Ind. 1988) (holding confession voluntary where 

officer promised leniency if defendant “came clean”); Ford v. State, 504 N.E.2d 

1012, 1013 (Ind. 1987) (holding confession voluntary where officer told 

defendant that others were making statements and that it would be in his best 

interests to make a statement himself); Hampton v. State, 468 N.E.2d 1077, 1080 

(Ind. Ct. App. 1984) (holding confession voluntary where officers told 

defendant possible sentences for crime, that mitigating circumstances could be 
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considered, and that they would inform court if he was truthful and 

cooperative); White v. State, 404 N.E.2d 1144, 1146 (Ind. Ct. App. 1980)

(holding confession voluntary where officer stated, “if you help us like your 

sister, we’ll help you”). The trial court did not err when it found that Smith’s 

statement was voluntary.

Issue Three: Cross-examination

[17] Finally, Smith contends that the trial court abused its discretion when it 

prohibited him from questioning Detective Hart about threats Detective Hart 

had allegedly made to Smith during the interview. A trial court has wide 

discretion to determine the scope of cross-examination, and we will reverse only 

for a clear abuse of that discretion. Nasser v. State, 646 N.E.2d 673, 681 (Ind. 

Ct. App. 1995). The general rule is that cross-examination must lie within the 

scope of the direct examination. Id. A trial court abuses its discretion in 

controlling the scope of cross-examination when the restriction relates to a 

matter which substantially affects the defendant’s rights. Id.

[18] Here, Smith points out that, on direct examination of Detective Hart, the 

prosecutor asked him whether he had threatened Smith during the interview, 

and Detective Hart answered no. Smith asserts that that question and answer 

opened the door for Smith to question Detective Hart about alleged threats he 

had made. And Smith made an offer of proof where he asked Detective Hart 

about his statements to Smith that he faced “a crapload of Federal time” if he 

did not cooperate, and other statements to that effect. Tr. Vol. IV at 16.
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[19] The trial court limited Smith’s cross-examination of Detective Hart based on 

the court’s previous ruling that Detective Hart had not made threats against 

Smith during his interview. Indeed, again, “‘[s]tatements by police expressing a 

desire that a suspect cooperate and explaining the crimes and penalties that are 

possible results are not specific enough to constitute either promises or threats.’” 

Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004) (quoting Kahlenbeck v. State, 

719 N.E.2d 1213, 1217 (Ind. 1999) (emphasis added)). Thus, as the trial court 

determined, Detective Hart’s statements regarding possible penalties Smith 

faced did not constitute threats. And because there is no evidence that 

Detective Hart threatened Smith during the interview, Smith cannot show that 

the trial court abused its discretion when it prohibited Smith’s questions of 

Detective Hart about alleged threats on cross-examination.

[20] Affirmed.

Pyle, J., and Altice, J., concur.