Duran v. State Of Ind., 45S03-0910-CR-430.

• Docket Nº: No. 45S03-0910-CR-430.
• Citation: 930 N.E.2d 10
• Case Date: June 30, 2010
• Court: Supreme Court of Indiana

930 N.E.2d 10

Luis E. DURAN, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).

No. 45S03-0910-CR-430.

Supreme Court of Indiana.

June 30, 2010.

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COPYRIGHT MATERIAL OMITTED

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Alison L. Benjamin, Paul G. Stracci, Merrillville, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0811-CR-569.BOEHM, Justice.

Police attempting to execute an arrest warrant broke into the defendant's home where they did not find their suspect, but happened on evidence of an unrelated crime. The police acted solely on the basis of uncorroborated information from an anonymous source, and without any immediate need to prevent ongoing crime or flight. We hold that the entry into the defendant's home violated both the federal and state constitutions and the evidence must be suppressed.

Facts and Procedural History

On March 23, 2007, officers of the East Chicago Police Department attempted to execute an arrest warrant for Nelson Hernandez, an auto theft suspect. The arrest warrant listed 3902 Butternut as Hernandez's address. When Officer David Gemeinhart went to that address to serve the warrant, Hernandez's mother answered the door and told Gemeinhart that Hernandez was staying with her sister (Hernandez's aunt) in “the Harbor,” a different area of East Chicago. Gemeinhart did not ask for the aunt's name or address.

That evening, Gemeinhart and Officer Kevin Harretos happened upon Officer

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Samuel Maldonado at the police station. Maldonado reported that a few days earlier he had dropped Hernandez off in front of an apartment building at 2001 Broadway, which might colloquially be identified as in “the Harbor.” ¹ Maldonado had driven Hernandez home from the hospital after Hernandez had been released in a full leg cast as a result of injuries sustained in an accident that ended a police chase. Maldonado did not explain why he gave Hernandez a ride, but he did say that when he brought Hernandez to the apartment building at 2001 Broadway, an older woman met Hernandez outside the building and helped move his belongings inside.

Sometime after midnight, Maldonado, Gemeinhart, Harretos, and at least two other officers decided to try to serve the warrant at 2001 Broadway. The building housed both apartments and a tavern. The outer door leading to the apartments was locked, and the officers had no information suggesting which apartment within the building might house Hernandez. At some point a man emerged from the building and the officers showed him a picture of Hernandez and asked him if he knew where Hernandez was. The officers provided inconsistent accounts of whether the man came from the apartments or the tavern, what he looked like, and how he answered their questions. According to Harretos, the man came out of the apartment entryway, had long hair, and was large (over six feet tall) and “scruffy looking,” with a beard. Harretos also said that when the officers showed the man a picture of Hernandez, the man stated that he didn't know the man in the picture but he was staying in an upstairs apartment with a green door. According to Gemeinhart, the unidentified informant came from the door to the tavern, was in his forties or fifties, had a mustache, and was 5'10? or 5'11? tall. Gemeinhart recalled that the man stated that he knew Hernandez and directed the officers to the apartment with the green door, but did not provide the officers with entry to the apartments. According to Maldonado, the unidentified informant came from the tavern and was “neat looking,” in his fifties, and was 5'10? or 5'11? tall. Maldonado said the man opened the outer apartment door for the officers and directed them to the apartment with the green door. The officers all agreed that they did not get the man's name and did not know where he went after they spoke with him. They also all agreed that the man directed the officers to an upstairs apartment with a green door, and that there was only one apartment with a green door in the building.

The officers knocked on the green door to Luis Duran's apartment. The officers did not agree on how they announced their presence, whether they stated their purpose, what the occupant's response was, or how long they knocked on the door.² They

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all agreed, however, that after knocking for several minutes, and after hearing some noises inside the apartment, they broke down Duran's door, entered his apartment, and held him at gunpoint.

Hernandez was not in Duran's apartment, but the officers found a plastic bag containing a “white rock like subject” on the bedroom window sill and what appeared to be narcotics packaging equipment on the dresser. The white substance later tested positive for cocaine. After Duran was placed under arrest, the officers knocked on another door in the apartment building and immediately found and arrested Hernandez.

The State charged Duran with Class A felony dealing in cocaine and Class C felony possession of cocaine. Duran moved to suppress the evidence found in his apartment, arguing that the officers' search of his apartment violated both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. After a hearing in which Harretos, Gemeinhart, and Maldonado testified, the trial court denied Duran's motion, but certified its order for interlocutory appeal. The Court of Appeals accepted the appeal and affirmed the trial court's denial of the motion to suppress over the dissent of Judge Darden. Duran v. State, 909 N.E.2d 1101 (Ind.Ct.App.2009). We granted transfer.

Standard of Review

In reviewing a trial court's ruling on a motion to suppress, we determine whether substantial evidence of probative value exists to support the trial court's ruling. Litchfield v. State, 824 N.E.2d 356, 358 (Ind.2005). We do not reweigh the evidence and consider conflicting evidence most favorably to the trial court's ruling. Id.

I. Fourth Amendment Claim

Duran first argues that the officers' entry and search of his apartment violated his rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment proclaims that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. This federal right to be free of unreasonable searches and seizures applies to the states through the Fourteenth Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001) (citing Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

The first issue is the requisite quality of information to support entry into a home to execute an arrest warrant without a search warrant. “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). In recognition

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of this principle, the police may not enter a home by force to make a “routine” arrest without a warrant. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). An arrest warrant founded on probable cause gives the police “limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Id. at 603, 100 S.Ct. 1371. The belief is judged on the information available to the officers at the time of entry and need not prove to have been correct in hindsight. United States v. Lovelock, 170 F.3d 339, 343 (2d Cir.1999). As one leading treatise summarized, it is “generally accepted” that reason to believe “involves something less than” probable cause.³

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3 Wayne R. LaFave, Search and Seizure § 6.1(a), at 265 (4th ed. 2004).

Because the “reasonable belief” required by Payton requires a lower degree of confirmation than probable cause, some commentators have likened “reasonable belief” to the “reasonable suspicion” necessary for an investigative “ Terry stop.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); James P. Fleissner, Constitutional Criminal Procedure: Annual Eleventh Circuit Survey, 47 Mercer L. Rev. 765, 779 (1996); Matthew A. Edwards, Posner's Pragmatism and Payton Home Arrests, 77 Wash. L. Rev. 299, 364-65 (2002). On the other hand, as a matter of language, more information is required to believe something is true than to suspect it. And, as a matter of policy, entry into a home to execute an arrest warrant without exigent circumstances based on “reasonable belief” may require “something more” than an investigative stop based on “reasonable suspicion.” Immediate execution of a “routine” arrest warrant, i.e., one involving no exigent circumstances, is not ordinarily necessary to prevent future crime. A Terry stop, by contrast, is justified in part by concern that there is ongoing criminal activity. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”). As explained below, we conclude that the information available to the officers here did not satisfy even the least restrictive reasonable suspicion standard. We therefore need not further explore the potential differences in the quality of information available required to meet probable cause, reasonable belief, and reasonable suspicion. For purposes of this opinion, however, we will adopt the terminology of the majority of courts and use “reasonable belief” as the quality of information available required to enter a home to execute an arrest warrant.

The next issue is what the officers must reasonably believe. When the...