Duran v. State

automatically signifi- offense, amount to a of his does not As to the nature State, were not Edrington phys v. notes his vietims factor. Powell mitigating cant (Ind.Ct.App.2008). the court ically injured. heard N.E.2d significant to the level of testimony It not rise from L.J.E.'s father that she does re- where the defendant has mitigation withdrawn and become more distant plea benefit from the him, a substantial ceived Edring- from and there was evidence him against evidence is such or where the position ton violated a of trust with at least merely is plead guilty the decision to per one victim. The nature of his offense Here, at 1262-63. one. Id. pragmatic an enhanced sentence. mits Edrington's plea guilty of exchange for character, Edrington admits As for his felonies, the State dismissed a two A Class a minimal crimi- substance abuse and has felony agreed to recom- A count Class say nal record. We cannot his sentence is be Edrington's mend sentences served light of his character. We inappropriate concurrently. affirm the trial court. the "position trial court believed The Affirmed. "big aggravator" was the aggravator care" (Tr. the IV at outweighed mitigators. BAKER,C.J., in result. concurs 21.) weight minimal light In of the mitigators sentencing assigned court J., BARNES, concurs. "po- to the importance assigned say aggravator, care" we can sition of have im-

confidence the trial court would if sentence even it had

posed same improper aggravator

considered we need not remand for ages

victims'

re-sentencing. DURAN, Appelliant-Defendant, Luis E.

2. Imappropriateness mayWe revise sentence au if, after due consider

thorized statute Appellee-Plaintiff. Indiana, STATE decision, the trial court's we find ation of No. 45A03-0811-CR-569. inappropriate light of the sentence the character of nature of the offense and Appeals of Indiana. Court 7(B). Appellate Ind. Rule offender. whether a is determining

When sentence July 2009. recognize presump we inappropriate, Granted Oct. Transfer starting point tive sentence as appropriate has selected as legislature State,

the crime. 848 N.E.2d Weiss (Ind.2006). In reviewing Rule

7(B) challenge, we defer appropriateness State, trial court. Stewart v.

to the The (Ind.Ct.App.2007). persuade on the defendant to us

burden is inappropriate. Childress v.

his sentence (Ind.2006). 1073, 1080 848 N.E.2d not met that burden.

Edrington has Concluding the trial

Indiana Constitution. af- improper, court's decision was not we firm. History and Procedural

Facts 4, 2007, Offi- On the afternoon of March Chicago of the East cer David Gemeinhart Department attempted Police to serve Hernandez with an arrest warrant Nelson warrant, at the address listed on the Butternut, Chicago, East Indiana. The warrant on a recent incident was based allegedly where Hernandez stole a vehicle injured and was when the vehicle crashed during police Upon the course of a chase. Butternut, at 3902 Officer Gemein- arrival mother, hart with Hernandez's who spoke him in "the living told that Hernandez was Harbor," neighbor- which apparently Chicago, though hood of East the record is entirely point. Transcript not clear on this at 50. evening,

Later that Officer Gemeinhart Maldonado, spoke with Officer Samuel who Hernandez, was familiar with an at- tempt to determine his whereabouts. For- Stracei, Benjamin, L. Paul G. Thi- tuitously, Officer Maldonado told Officer Alison Stracei, P.C., Merrillville, IN, ros & Attor- he given Gemeinhart that Hernandez neys Appellant. for hospital a ride from the to an East Chica- apartment go building on the corner of Zoeller,

Gregory Attorney F. General of Indiana, Meilaender, Broadway days Elm earlier and several Deputy Ellen H. At- IN, General, torney Indianapolis, just prior Attor- and to the issuance of the arrest neys Appellee. warrant. Officer Offi- Maldonado also told cer Gemeinhart that in a Hernandez was

OPINION cast and on crutches and that when the apartment building, two arrived at the he ROBB, Judge. waited outside with Hernandez until a Summary Case and Issue thought woman-Officer it was Maldonado brings interlocutory ap- Luis Duran mother-opened Hernandez's the door and peal following the trial court's denial of his helped building into the with Hernandez suppress during motion to evidence seized belongings. appeal, search of his On p.m. evening, Around 11:00 Offi- issue, Duran which we raises one restate Maldonado, along cers Gemeinhart properly as whether the trial court con- Harretos, with Officer Kevin went to the cluded that the into Broadway apartment building on apartment Duran's did not violate the arrival, Elm. after their the offi- Shortly Fourth Amendment of the States United I, spoke Constitution or Article of the with a man who claimed to Section cers and con- officers searched not en- record is The Hernandez. know not there. Id. came into Hernandez was firmed how the clear tirely however, did, Harretos observe man-Officer The officers with contact the locked answered window the man cocaine on the bedroom bag testified apart- area sill, the commons that were believed baggies door to along to the officers' response building ment material for the packaging used as to be testified knocks, Officer Gemeinhart while seized these items The officers cocaine. to a near a door standing the man was Shortly arrest. Duran under and placed connected to that was bar thereafter, the re- officers knocked on the man dispute is no building-but there second-floor maining two Specifically, Hernandez. to know claimed one of aunt answered doors. Hernandez's the man showed Gemeinhart Officer when (the entirely clear record is them asked if of Hernandez photograph which) in- Hernandez was and confirmed photograph depicted person side; shortly arrested thereafter. he was Hernandez, affir- responded 3, 2007, charged the State August On knew where if he asked matively. When in co- felony dealing A Duran with Class lived, he lived in man said felony possession of and Class C caine green a apartment a second-floor 2, 2008, Duran filed a April On cocaine. added, only apartment "It's the and door entry alleging that the suppress, motion Id. door on it." green has a there that up violated the Fourth apartment into at 57. of the United States Constitu- Amendment information, officers the this Based on 11, I, Section and Article tion building, climbed apartment the entered 2008, 19, On June Indiana Constitution. stairs, green the located flight of the hearing on trial court conducted the green door the confirmed was and motion, testimony from Officers hearing officers also ob- floor. The the second on Gemeinhart, Harretos, and Maldonado. lacked building apartment served evidence, the trial court this Based on such as means of identification typical ap- motion. Duran now Duran's denied Officer room numbers. and mailboxes peals. green the door knocked Gemeinhart and Decision Discussion from inside and a man Officer asked, Id. at 65. is it?" "Who of Review I. Standard himself, and the identified Gemeinhart trial court reviews This Id. The said, a minute." "Hold on evi suppress of a motion to court's denial "shuffling around" heard a officers then Mast v. an abuse of discretion. dence for by si- followed from inside 415, State, (Ind.Ct.App. 418 809 N.E.2d several min- knocking After lence. Id. 2004), An of discre denied. abuse trans. Officer receiving response, without utes is if the trial court's decision tion occurs that if the occupant told the Gemeinhart effect of the logic clearly against kick it in. he would opened, not door was it. before Cochk and cireumstances facts passed minutes with- more After several (Ind.Ct. 980, State, N.E.2d 983 v. 843 ram Officer Gemein- response, receiving out denied, denied, cert. trans. App.2006), in and entered kicked the door hart 943, 1122, 166 L.Ed.2d 127 S.Ct. U.S. in the standing Duran was apartment. review, (2007). con this we conducting In asked and Officer Gemeinhart entryway, light in a most evidence conflicting sider him if Hernandez ruling, but the trial court's favorable to live here. "He doesn't replied, Duran here," search, so the favor- evidence can he's consider uncontested You also year State, Court refined this rule a later in able to the defendant. Smith v. 1214, (Ind.Ct.App.2003), States, Steagaild 204, v. United 451 U.S. 212, 215-16, trans. denied. 101 S.Ct. 68 L.Ed.2d 38 (1981), holding that exigent absent cireum- II. Propriety of Trial Court's Decision stances, an arrest warrant give does not police officers the authority to conduct a A. Fourth Amendment Violation nonconsensual search of the dwelling of a argues Duran person not named in the warrant. into his violated the Fourth Amendment. The Fourth Amend The federal circuit appeal courts of part, ment states in relevant right "The of interpreted have holdings of Payton people persons, to be secure in their and Steagaid as permitting police houses, effects, papers, against unrea to enter a if dwelling the evidence estab seizures, sonable searches and shall not be lishes the sufficiently officers are certain of . . . ." purpose violated The of provision 1) the following: the arrestee resided protect is to people from unreasonable 2) the arrestee seizure, search and and it applies to the was at the dwelling at the time entry. through states the Fourteenth Amend See, e.g., Bervaldi, United States v. ment. Krise v. 746 N.E.2d (11th Cir.2000). F.3d The cir (Ind.2001) Ohio, (citing Mapp 367 U.S. cuit however, courts are split, regarding 643, 650, 81 S.Ct. 6 L.Ed.2d 1081 what level certainty required under (1961)). remedy The for a violation of the prongs. both Todosijevic County Cf. Fourth Amendment is to render inadmissi Porter, Ind., 2005 WL at *4 any ble during evidence seized illegal (N.D.Ind., 2005) Dec.2, ("[One question 654-55, search. Mapp, 367 at U.S. 81 still Payton remained after Steagald: S.Ct. 1684. officer, if an armed with an arrest warrant York, In Payton 573, v. New 445 U.S. individual, for one may only lawfully enter 576, 1371, (1980), 100 S.Ct. 68 L.Ed.2d 639 that individual's home without an addition the United Supreme States Court held warrant, al search how sure must offi that the Fourth prohibits Amendment po cer be that the home he is entering be lice making from a warrantless and non- longs to the individual named in the arrest consensual into a suspect's home in warrant?" (emphasis original)). Seizing order to make a felony routine arrest. As on the "reason to believe" language of a corollary to holding, this the Court ree- Payton, majority of cireuit courts have ognized that "an arrest warrant founded interpreted the holdings Payton probable implicitly cause carries with it Steagaild requiring as be "reasonable authority limited to enter a dwelling in lief," which is a exacting less standard than which suspect lives when there is rea probable See, cause. e.g., United States v. son to believe the suspect is within." Id. Thomas, 282, (D.G.Cir. 429 F.3d 285-86 603, 100 S.Ct. 1371. The Court rea 2005), cert.denied, 1055, 549 U.S. 127 S.Ct. soned that this authority limited was con 660, (2006); 166 L.Ed.2d 519 States stitutionally permissible because a de Bervaldi, (11th 1256, 226 F.3d 1263 magistrate tached Cir. already determined 2000); there was McPheters, sufficient 1220, cause to arrest Valdes v. 172 F.3d suspect, (10th and that Cir.1999); determination out 1225 United States v. Lo velock, weighed any 339, (2d privacy 170 Cir.1999), interest F.3d 348 suspect might have in refusing denied, entry into cert. 853, his home. 134, U.S. 120 S.Ct. 602-03, See id. at 100 S.Ct. 1371. The (1999); 145 L.Ed.2d 114 United States Route, (5th 59, Cir.1997), and what we must assume was a conscious F.3d cert. denied, 1109, 2491, 521 U.S. 117 S.Ct. part effort on the Supreme of the Court in (1997); Wayne L.Ed.2d 998 see R. choosing the verbal formulation of 'reason also LaFave, Search and Seizure: A Treatise to believe' over 'probable "), that of cause.' 6.1(a), § on the Fourth Amendment at 265 denied, 869, cert. 516 U.S. 116 S.Ct. (4th 2004) ("Just ed. what reason-to- [the (1995). 133 L.Ed.2d 126 standard means believe] continues to be a Thus, applying the standard matter of uncertainty, considerable though adopted by review majority generally accepted that [it] involves courts, cireuit question becomes something less than the traditional proba whether the trial court abused its discre (footnote omitted)). ble cause standard." tion when it determined the officers rea The Ninth Circuit stands alone among 1) sonably believed: that Hernandez resid federal interpretation circuits in its Pay- green-door 2) ed at the apartment and ton Steagald as requiring probable was at that at the Parks, cause. See Motley v. 432 F.3d time the officers entered. In resolving (9th Cir.2005) (en bance); Unit question, we consider the totality of Gorman, ed States v. 314 F.3d 1111-15 (9th the facts and cireumstances within the offi .2002).1 Cir cers' knowledge prior to the entry. See We acknowledge there is some merit to id.; Bervaldi, see also 226 F.3d at 1263 the Ninth position. Circuit's See State v. (observing that "common sense factors" Smith, (Ariz. 208 Ariz. 90 P.3d should inform the "reasonable belief Ct.App.2004) (adopting the Ninth Circuit's ). prongs as Payton articulated in We also probable cause standard in part because emphasize a point implicit that is survey of Supreme opinions sug Court foregoing reasonable belief standard and gested "reason to believe" was synony particularly case, relevant to this namely, cause"), "probable mous with review de "the officers' assessment need not in fact nied. to borrow from the D.C. correct; rather, be need 'reason observation, Circuit's think "We it more ably believe' that the suspect resides at the likely ... Supreme Pay- Court in dwelling to be searched currently and is ton phrase used a 'probable other than present at Risse, the dwelling." 83 F.3d cause' because it meant something other 216; than 'probable Thomas, at LaFave, cause."" see supra, 6.1(b), 429 F.3d § also 8 286; at at see 2838 (noting also it would Magluta, United States v. create "an 1530, (11th Cir.1995) ("The 44 F.3d 1534 incredible Catch-22 situation" if the stan strongest support for a lesser burden than dard for determining a entry pursu valid probable cause remains the text Payton, Payton ant to Steagald was whether Smith, 83843, *3, Among Covington remaining v. the WL circuits, the First 2008 at Eighth appear adopted to have the reasonable (7th Fed.Appx. Cir.2008), 259 871 cert. de standard, belief -- but have done so without nied, ---, 99, U.S. 129 S.Ct. 172 L.Ed.2d mentioning probable the cause standard. See (2008). 82 Research has revealed one district Graham, 6, (1st United States v. 553 F.3d 12 opinion court from adopt the Fourth Circuit - Cir.2009), denied, --, cert. U.S. 129 ing the reasonable belief standard. See Smith 2419, (2009); S.Ct. 173 L.Ed.2d 1323 United 977, (E.D.Va. Tolley, F.Supp. 985-88 Risse, 212, (8th States v. 83 F.3d Cir. 1997). We also note that most state courts 1996). Third, Sixth, The and Seventh Cir appear adopted to have the reasonable belief split, cuits have noted yet the but have Silva, standard. See Commonwealth v. weigh Veal, in. See United States v. 453 F.3d 772, (2004) Mass. 802 N.E.2d 540 n. 7 (3d Cir.2006); 167 n. 3 United States v. cases). (collecting Hardin, (6th Cir.2008); 539 F.3d Lovelock, in their units. arrestee's, reside as who the in fact was

the Cf. officers (concluding police 170 F.3d at 344 reasonably officers the to whether opposed in the resided reasonably believed arrestee dwelling). arrestee's it was believed home because two-family of a attic prong, first Regarding home's address as reported arrestee reasonably believed the officers whether duty and because probationary part of his green-door resided Hernandez photo identified positively tenants two indicates record apartment, he lived arrestee and stated graph on officers received only information attic). in man, unidentified came from point the officers acknowledge We from a identified positively who the unidentified less about this case knew Hernan the officers and told photograph in Lauter knew the officers man than apart only green-door in the "stays" dez points Duran As about their informant. Tr. at 57. floor2 second ment on the out, attempt no to deter the officers made opinion at least one has disclosed Research they nor did ask identity, man's mine the reasonably be that officers concluding Hernandez resid why thought he dwelling the at a resided lieved an arrestee Never green-door in the by a ed provided solely on information based Lauter, theless, States think such an absence In we do not party. third United means the officers' necessarily (2d Cir.1995), information police offi 57 F.3d supreme Our was unreasonable. belief warrant an arrest to serve attempting cers Fourth in another court has observed from a building learned at an reliability of context that the Amendment father was whose confidential informant parties third provided information arrestee had relocat the landlord party whether the part turns in building. unit in the same ed to a basement "cooperative informant" or "professional reasonably be concluding In State, 842 N.E.2d resided the base arrestee Kellems v. lieved the citizen." See (Ind.2006) unit, (discussing the reliabili noted that the infor the court ment in the context of reason ty parties third and that past mant been reliable Terry stop), support suspicion able building's was the father the informant's grounds, other reh'y granted on Although the at 215. 57 F.3d landlord. meeting the former 1110. Those so, the latter state explicitly court did not serutiny because description warrant a reasonable basis point apparently exchange for a re information provide belief because the officers' informing leniency, landlords know Paw- ward, money or see is sensible to infer such as back, certainly it was Amendment step joyed we note zone of Fourth 2. To take a its own expectation Hernan- to believe of protection, reasonable for the officers and [defendant's] simply because he privacy was not reduced in the dez somewhere resided single in a low-rent hotel in a room lived Gemeinhart con- building Officer because apart- single-family or in a house rather than mother that he was firmed from Hernandez's (3902 banc); ment.") (en But- States v. living the warrant address see also United at (3d Cir.1992) ternut) and, Acosta, significantly, Officer Maldo- more F.2d right ("While have a officials building law enforcement dropped off at the nado Hernandez investigations a woman into belongings and observed with his conduct reasonable to alone, however, by to demand activity, plan officers criminal Standing help him inside. multi-unit entry every apartment Hernandez resided in a belief that into reasonable subject of an in order to locate building does not authorize in the somewhere United nor with- individual unit. is neither reasonable into each arrest warrant Cf. teach- purview Amendment in the of Fourth (9th Winsor, F.2d States J., (Cowen, dissenting). ings.") Cir.1988) ("[Elach ... en- of the hotel room story, through both Officer Maldonado's 350, 354, 269 Ind. loski v. reasonable belief that Hernandez resided (1978), 1230, 1232 whereas those N.E.2d building, in the see description supra, latter are deserv somewhere note meeting the and, reliability" specifically, by be more ing "greater confirming of a indicia of usually green-door apartment information not there was one they provide cause self-gain, help police floor, Kellems, but to solve on the second see Kellems, 356; crimes, 842 N.E.2d at (indicating N.E.2d at 356 the witness was cf. part police reliable in because officers cor 252 F.3d Burbridge, States United Finally, her story). Cir.2001) roborated Officer (5th (observing, 778-79 man discussing requested of whether there was Gemeinhart testified the context identity that not reveal cause to conduct a warrantless the officers his to probable that Hernandez because he "didn't want to be motorcycle, search of defendant's in him." average Although where "an citizen tenders informa trouble with Tr. at 62. it, acknowledge, puts be we as Duran police, tion to the should that it dealing that are is reasonable to infer from such state permitted to assume may in of ment the man have person with a credible the absence that "had an axe Duran," such to special suggesting grind equally cireumstances that reason inference, viewing able in a (citation omitted)). evidence might not be the case" trial light most favorable to the court's Here, the unidenti the record indicates must, Smith, ruling, as we accurately fied man is more described as a willing pro is that the man was to in eooperative professional citizen than a vide the officers with information despite formant. Officer Harretos testified perception doing his so ran the risk of the locked door to the com answered totality reprisal. Considering the apartment building area of the mons cireumstances, particularly the infor knocks,3 response to the officers' which man, provided by mation the unidentified initial chance suggests the encounter was a we conclude the officers' belief that Her occurrence, not an the man to attempt green-door apart nandez resided at the in exchange offer information for a reward. ment was a reasonable one. Although the of man's initial identification questiona Hernandez could be considered Regarding prong, second response leading ble because was reasonably whether the officers believed (Le., Hernandez was at the at the question Officer Gemeinhart testified if he asked the man he knew Hernandez entry, time of indicates that record then him a Her photograph showed prior entry, to the the officers knew that nandez), subsequent explanation relatively immobile be only green-door Hernandez resided in the cause Officer Maldonado observed him a Indeed, particu on the second floor was cast and on crutches. Officer Mal larly descriptive building because the that a woman had to help donado testified typical identifying lacked him into building belongings. means individ with his and room When Officer Gemeinhart knocked on the units, ual such as mailboxes Moreover, prior entering, green requested numbers. a man from inside identify corroborated the man's part Officer Gemeinhart himself. above, review, however, requires 3. mentioned As the evidence on this standard of us to point conflicting, is as Officer Gemeinhart conflicting light a resolve evidence in most initially testified the officers saw the man Smith, ruling. the trial favorable to court's standing outside the door to a bar that was 780 N.E.2d at 1216. apartment building. connected to the Our man Hernan ably concluded that the was complied, Gemeinhart Officer When helping or he was said, Tr. at 65. dez that on a minute." "Hold Montgomery hide. the officers could response, on this Based Cf. (con (Ind.Ct.App.2009) pre- the man was reasonably inferred have Instead, cluding, exigent in the context of whether answer the door. paring to justified circumstances officers' warrant- "shuffling around" from heard a room, entry although less into a hotel that Id. and then silence. inside the response a lack of to the officers' knocks minutes, Officer Gemein- For several more entry, alone would not have authorized the knocking on the but hart continued justified it was because the officers had response. receive a did not co-occupant reliable information from a officers rea- addressing whether Courts person that the in the room was in dan at the arrestee was sonably believed the ger), pending. way, trans. Either the evi of entry at the time dwelling question in supports dence a conclusion that the offi reviewing a court have that observed reasonably cers believed would find fac- to common sense "must be sensitive Hernandez inside the when presence," Ma- indicating tors a resident's they entered. 1535, including at "the fact gluta, F.3d activity involved criminal person that Having concluded the officers may attempting to conceal his where- be reasonably believed that Hernandez resid Vaidez, abouts," 172 F.3d at 1226. Given green-door apartment ed at the and that arrestee, the apartment he was at when the officers his rel- Hernander's status as immobility, non-respon- entered, ative the man's entry it follows that their Officer Gemeinhart's knocks pursuant Payton siveness to to permissible Steag-a trial Accordingly, ld.4 court was the officers minutes earlier despite telling "[hjold minute," and the within its discretion when it concluded the to on a tr. at apart- from inside the "shuffling entry around" did not violate the Fourth the officers could have reason- Amendment.5 id., ment, closing principal 4. whether there to that a We note case is reason believe felon relies, particular dwelling."). Subsequent at in a on which Duran least to extent lives case, factually analogous noted, to the instant cases from the Second Circuit have however, "Steagaid prohibit did ... Nezaj, F.Supp. United States v. (S.D.N.Y.1987), reasonably predates two-prong inter- into residence believed to Payton belong pretation Steagald person as named of formulat- to in the arrest by appeal. regardless ed the federal circuit courts of warrant" of whether the residence Instead, Nezaj Lovelock, the district court in to appears in the warrant. was listed F.3d Accordingly, Steagald ap- at 344. the Second Circuit interpreted Payton have as has suggested Nezaj should either be "read plying separately depending on whether the narrowly apply identity question where the was named in the arrest ("When suspect part is established in ad- F.Supp. warrant. at 499 See rejected altogether dress" or unsound and judicial target "as has found that the officer Payton progeny." inconsistent and its address, warrant at a lives certain arrest Lauter, 57 F.3d pur- warrant can be at that address executed Payton suant .... when the ar- address, rest warrant lists no or when it lists 5. Thedissent would conclude the officers' en try an address other than the one the officers into Duran's violated the enter, Amendment, privacy apparently seek to interests of third Fourth because parties strongly implicated.... protect contrary are To trial court's conclusion to runs Steagald's allowing afoul of admonition that give logic parties third and to effect to the " officer, when officers to 'decide there is suffi Steagald, judicial it must be a not the scene, justification searching police officer on the who decides cient the home of a

1111 intrusion the method of the search or sei- I, 11, B. Article Section Violation imposes zure ordinary the citizen's ac- argues Duran the officers' en tivities; 3) the extent of law enforce- I, into his violated Article try ment needs. Litchfield, 824 NE2d 11, Section of the Indiana Constitution. Incorporating I, 11, 361. the standard of review Article Section states in relevant part, right people "The to be secure above, mentioned question becomes houses, persons, in papers, their and ef whether the trial court abused its discre- fects, against unreasonable search or sei tion when it concluded zure, Although shall not be violated...." into the pursu- was reasonable provision derives from and shares ant to the Litchfield factors. nearly language the same as the Fourth Amendment, supreme our court has stated Turning factor, first the second interpret that it will apply Section 11 intrusion, degree of the State con independently from Fourth Amendment cedes, and agree, we the officers' en State, jurisprudence. See 824 Litchfield try into Duran's apartment was a sub (Ind.2005). 356, N.E.2d 360-61 "Rather stantial intrusion. This is so because looking requirements than to federal such person's dwelling deserving the high of probable as warrants and cause when eval degree est protection I, under Article claims, 11 uating place Section we the bur State, Section See Willis v. 780 den on the State to show that under the 423, N.E.2d (Ind.Ct.App.2002); 423 cf. totality of the cireumstances its intrusion United States v. United State Dist. Bulington, reasonable." State v. Court, 297, 313, 2125, 407 U.S. 92 S.Ct. (Ind.2004). 435, This "reason (1972) L.Ed.2d 752 ("[Plhysical entry of inquiry ableness" turns on the following 1) home against is the chief evil non-exclusive which degree factors: concern, suspicion, wording or of the Fourth knowledge that a Amendment is 2) occurred; ...") violation has degree directed. party subject third for the of an arrest war- conflicting resolve light evidence in a most significant potential rant' would 'create a Smith, favorable ruling. to the trial court's Dissent, op. (quoting abuse.'" at 1115 780 N.E.2d at 1216. Also not relevant to 215, 1642). U.S. at 101 S.Ct. This admoni- determining a Fourth Amendment violation is tion, however, does not extend to cases such the dissent's claim that the officers violated reasonably as this one where the officers be- 35-33-5-7(d), Indiana Code section for state dwelling lieve the arrestee resides at the rights law does not affect the and remedies (de- question. Motley, See F.3d at available under the federal constitution. See scribing Steagald "holding as that officers - Virginia v. Moore, U.S. --, --, could not enter and search the house of a (2008); S.Ct. 170 L.Ed.2d 559 see party simply they third because had a 'reason- Kyles also 888 N.E.2d 812-13 subject able ... belief that the of an arrest (Ind.Ct.App.2008). Finally, the dissent states there; guest they warrant was a had to have closing, deeply ""Iam testimony troubled evidence that (quoting he was a co-resident" indicating officers believe that 1642)). 451 U.S. at 101 S.Ct. when the open resident of a does not We note appears also that the dissent having after simply heard the an among outside, take issue the conflicts 'police' offi- nouncement that are the offi testimony cers' may and the officers' claimed gain entry." vio- cers kick in that door to Dissent, op. 35-33-5-7(d). at 1115. We share the dissent's lation of Indiana Code section concern, Regarding conflicting testimony, we have subjective but note that the officers' foregoing

noted such conflicts discus- evaluating beliefs are not relevant in an al sion, but are determining leged not relevant to Fourth Amendment violation. See whether the trial court abused its discretion States, 806, 813, Whren v. United 517 U.S. requires because our standard of review us to (1996). S.Ct. 135 L.Ed.2d 89 boundaries the factor, integrity physical the de- the first next to

Turning concern, knowledge or suspicion, State, home," gree of 696 N.E.2d Cox occurred, ini- note has we violation (Ind.1998). that a subsequent con The man's whether the "vio- dispute tially parties duct, however, the con rise to reasonable gave officers' to the pertains this case lation" in that he was part the officers' cern on a committed Hernandez knowledge that attempting to or that he was officers' crime, it refers to the whether or hide Hernandez. resided at that Hernandez knowledge proper course responds Duran not read We do apartment. green-door circumstances the officers under these for interpre- the former applying as Litchfield a apply to search would have been application the court's tation because certainly acknowledge warrant. We the officers whether this factor addressed for the offi have been reasonable would that grounds suspect to had reasonable (indeed, presump a warrant cers to obtain in the defen- would be found contraband reasonable), approach tively but such ingqui- differently, the trash. Stated dants' whether the an answer to supply does not the officers suf- ry turned on whether actually took was the officers approach object of the that knowledge ficient regard, supreme In our reasonable. that particular be found at search would "Indiana citizens have court has noted that of the facts of this In the context place. personal pri concerned not with been case, then, translates into inquiry such an security, and vacy safety, also with but had reasonable the officers whether from crime." State v. protection at Hernandez resided grounds to believe Gerschof (Ind.2002). Given fer, 763 N.E.2d giv- green-door of the man's con conspicuous nature that the officers en our conclusion above knocks, we to the officers' response duct in that Hernandez resid- reasonably believed that inconsis say the officers' was green-door ed at the cannot entered, when the officers safety, security, protection he was there tent finding that the offi- factor favors Accordingly, this the officers from crime. was reasonable. cers' conduct conduct finding favor a their needs reasonable. was factor, the final the extent of Regarding needs, note, men- we as factors, we are law enforcement Applying Litchfield above, initially re- that the officers tioned intrusion on the one left with substantial the man response from inside ceived hand, hand, and, on the other a reasonable prepar- he suggested was part the officers' that Hernandez belief on door, but the officers then ing open to at the green-door apartment was at the "shuffling heard some around" followed entry and conduct that was consis- time of Thereafter, the man silence. Tr. 65. needs. Because tent with law enforcement Gemeinhart's unresponsive to Officer totality favor a find- these factors in their similarly As was ob- repeated knocks. the officers' conduct was reason- ing that 764 N.E.2d served Van Winkle able, abused say cannot the trial court we trans. de- (Ind.Ct.App.2002), n. 7 when it concluded such con- its discretion nied, very in "a differ- case would be I, Article Section duct did not violate had the posture" ent and seizure search Conclusion responded to the simply properly concluded The trial court go away or told them to because knocks entry into Duran's the officers' courtesy common [the "[alttendant Amendment of not violate the Fourth did exclude opening ability is the door] I, or Article States Constitution preserve United knocking those who are in the staying apartment Hernandez was of the Indiana Constitution. Section door; upstairs green the trial court's with a Gemeinhart we affirm Accordingly, suppress to and could not remember how the officers had of Duran's motion denial actually gained entry building. trial. to the remand for knocking Haritos said that after on a remanded. Affirmed and minutes, ten street-level door for seven to looking man 280-pound "scruffy" a 6 3" J., BAILEY, concurs. long "with real hair" came to the door and DARDEN, J., separate dissents with (tr. it, 19); man opened this identified opinion. by shown to him Gemeinhart as picture DARDEN, sepa- Judge, dissenting, with Hernandez, staying up- told them he was opinion. rate green in the with the apartment stairs door, building. and let the officers in the starting I dissent. As a respectfully Maldonado, According to a 55 10" to 5 11" critical to remember that point, I think it 200-pound looking" "ap- "neat very late-night effort to began this as the proached" building officers outside arrest warrant for Nelson serve a routine Hernandez, charge sought them, (tr. who was help and asked whether he could (not violence or a 86); theft a crime of Hernandez, auto when asked about offense), undisputed that it is man indicated that Hernandez was in the drug and door, pursuit" apartment upstairs green no "hot or emer- with the that there was Further, appears from he them geney opened give here. and the door to ac- relatively Hernandez was well building. record that to the cess community police. to the known Once the apartment building, inside all knew that in the course of his The officers agree they directly went to crime, Hernandez had suffered alleged door, green with the with- only recently leg injury in a crash and was checking any out other units for Hernan- a full hospital-wearing released from the happened to dez. as what when mobile with the use of two cast and door, they green were outside their The record contains no evidence crutches. again accounts differ. Gemeinhart testi- attempts by the officers to learn the "announce[d], fied that he knocked and aunt, narrow help name of Hernandez' to 'police department,'" "right away, and as Moreover, the location of her residence. knocked, soon as 'a voice asked who [he] they they knew that no matter where lo- there'"; answered, "the Gemeinhart Hernandez, it was to be in the going cated door,"; police, open shuffling nois- building. in that party residence of a third heard, silence; were then Gemeinhart es Next, I note the substantial number again, knocked and when there was no upon testimony facts which the officers' response, police department, said "It's the testimony their dif- Specifically, differed. open If open you door. don't door they to the means which fered as in"; it will be kicked five minutes after his building, gained access to (Tr. knock, first he kicks the door. they were happened what when outside 66). Haritos, According to after Gemein- apartment, the door to Duran's and their while," hart knocked "for a someone an- upon entering actions swered; Gemeinhart asks that the door be on"; opened and is told to "hold Gemein- building, to their to the Gem- As Hernandez, that he asked a man near a einhart said hart asks for and is told to on"; heard; "walking "hold around" is building whether he knew Her- door to nandez, did, he then Gemeinhart knocks for five to ten and the man said minutes, inside; open you anything Gem- the door if don't have

more with silence anyone hide or hide. door, says, "Open the we need to einhart they "looking (Tr. 70). are for" you" talk to

Hernandez; threatens to kick Gemeinhart Next, I note the uncontradicted evidence opened; in if it is not after anoth- the door that when af- entered minute, kicks the door in. er Gemeinhart ter Gemeinhart had kicked in the all guns (Tr. 26). three officers had their drawn. How- that Maldonado testified ever, happened they for three to four as to what once en- Gemeinhart first knocked tered the apartment, again accounts differ. minutes, saying "police, police"; then a Gemeinhart, According stayed to he with door, was at the and he voice asked who Duran while Haritos and Maldonado said, on," answer, "police"; the voice "hold Hernandez, looked for Haritos report- and quiet,; then one to two and there ed that "he found what he believed to be later, Gemeinhart kicked the door minutes crack sitting cocaine on the window sill of 91). (Tr. 90, in. (Tr. 69). the bedroom." Haritos testified provides I that Indiana law note for that Gemeinhart remained with Duran open" enforcement officer to "break law through while he and Maldonado looked Hernandez, "in the small for and in dwelling door order to execute a search plastic the bedroom he saw "a warrant, bag clear following if he is not admitted an powdery with a white substance" which he authority pur- announcement of his and cocaine; believed to be after he and Mal- 35-33-5-7(d) § pose." (empha- Ind.Code donado confirmed that Hernandez was not added). However, there sis is no testimo- in apartment, he went to the bedroom ny that their purpose officers announced (Tr. 34). "and retrieved it." to According door, i.e., they when knocked on Duran's Maldonado, Duran, stayed he while they that officers with police were a war- Gemeinhart and Haritos looked for Her- Here, rant the arrest of for Hernandez. nandez; say they he heard them "that testimony only establishes that Gem- narcotics, view"; possible in plain narcotics "police." einhart announced himself as possible pointed and the contraband "was suggests The record that Gemeinhart be- (Tr. 94, top out to [him] dresser." lieved that such an identification was suffi- 95). entry. cient to the forcible justify Specifi- As to the final evening, event of the all cally, Gemeinhart testified that his forcible agree they the officers that located Her- entry following: was based on the Hernan- nandez at the first door him living dez mother told that he was knocked on after kicking Duran's door neighborhood; that Maldonado had recent- subsequently arresting They and him. ly him dropped building; off at that an had arrested Duran finding based on some unknown man at or near the building told possible narcotic substance at some loca- him that Hernandez lived on the second apartment. tion in his door; floor green with a and When I review the evi- uncontradicted the simple fact that when I knocked on (that exigent denee there were no cireum- said, subject door and the 'who is it? stances, particulars concerning and the said, I 'police, open he would not why being sought) Hernandez and he was the door I serving been war- substantial conflicts the testimo- ha[d] long enough you're rants to know that if officers, ny of the I cannot find by police, you totality justify wanted should of the cireumstances subject of Duran's that was wanted on the arrest Steagaild allowing police, warned that "the warrant or that we had an arrest for." acting exigent alone and in the absence of (Tr. 76). circumstances" to "decide when there is appreciate I the majority's careful atten- justification searching sufficient precedent tion to in reaching the result it home of a party subject third for the of an has. I deeply am troubled arrest warrant" would a significant "create testimony indicating police officers be-

potential for abuse." 451 U.S. lieve that when the resident of a Further, S.Ct. 1642. Steagaid concluded open does not having after simply using authority arrest warrant "as heard the announcement "police" are to enter the parties" homes of third suf outside, may kick in that door infirmity fered from the of "leav{ing] gain entry. My reading of the facts the unfettered discretion of presented to the trial court in this case particular decision as to which homes lead me to strongly believe that Duran's searched," should be and that "the Fram motion to suppress ers of the Fourth should have been Amendment" would not granted. have "condoned such a result." Id. court,

In argument its to the trial

State asserted that was warranted

because might escaping, be or

destroying keys, evidence-such as or doc-

umentation, or tools. it is undis-

puted that Duran's was on the floor,

second and the officers knew that

Hernandez had a full required cast and two crutches to move about-thereby CORP., lim- CIMARRON OIL an Illinois iting ability to escape from a second Corporation, Appellant, Further, floor I cannot find possible destruction of evidence related to a charge of auto theft paramount is so CORP., HOWARD ENERGY as to supersede the longstanding history of Corporation, an Illinois Fourth protection Amendment against the Appellee.

invasion of one's own home. No. 26A01-0902-CV-67.

Finally, I cannot accept that there was by consent Duran to the officers search Appeals Court of of Indiana. Hernandez once were inside- given the uncontradicted evidence that his July in, just door had been kicked and all three guns had their drawn. I note that Gemeinhart, the lead charge officer and in

of the officers' efforts to serve the arrest

warrant, apparently any did not believe

consent Duran was needed. Gemein-

hart testified that "after [he] broken down,

the door with enough understanding inside, subject [he] believed the going

we were anyway search for the

Case Details

Case Name: Duran v. State

Court Name: Indiana Court of Appeals

Date Published: Jul 23, 2009

Citation: 909 N.E.2d 1101

Docket Number: 45A03-0811-CR-569

Court Abbreviation: Ind. Ct. App.