Esquerdo v. State, 49S04-9410-CR-931

Docket NºNo. 49S04-9410-CR-931
Citation640 N.E.2d 1023
Case DateOctober 04, 1994
CourtSupreme Court of Indiana

Page 1023

640 N.E.2d 1023
Ernest ESQUERDO, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.
No. 49S04-9410-CR-931.
Supreme Court of Indiana.
Oct. 4, 1994.

Page 1025

Robert W. Hammerle, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.


DeBRULER, Justice.

Following a bench trial, the Marion County Superior Court convicted appellant Ernest Esquerdo of Possession of Cocaine with the Intent to Deliver, I.C. § 35-48-4-1, a Class A felony; Possession of Cocaine, I.C. § 35-48-4-6, a Class C felony; Possession of Marijuana with the Intent to Deliver, I.C. § 35-48-4-10, a Class D felony; and Possession of Marijuana, I.C. § 35-48-4-11, a class D felony. The trial court merged the two cocaine charges, as well as the two marijuana charges, and sentenced appellant to 20 years imprisonment for the cocaine offenses, and 1 1/2 years for the marijuana charges, to run concurrently. In a memorandum opinion, the Court of Appeals (4th District) affirmed the convictions and sentences. The Court of Appeals denied appellant's Petition for Rehearing. Appellant petitions this Court for transfer of the cause. We grant transfer to address the search and seizure issues that appellant has raised.


The facts supporting the verdict are as follows: A confidential informant advised the Indianapolis Police Department that appellant was selling drugs from his residence at 623 Grande Avenue, Indianapolis, Indiana. On the evening of February 2, 1990, IPD orchestrated a controlled buy from appellant, with the confidential informant posing as the drug buyer. The officers searched the confidential informant, to determine whether the informant was then carrying any illegal narcotics. Finding no drugs, the police outfitted the informant with a Kel-set transmitting device, provided the informant with marked money, and sent the informant into appellant's residence. Narcotics investigators surrounded the perimeter of the house, concealed themselves, and watched all entrances to the residence.

At approximately 10:30 P.M., the confidential informant departed appellant's residence, and signaled to the officers that she had purchased some cocaine. IPD Detective Tom Tudor immediately took possession of the cocaine that was purchased in the controlled buy. The confidential informant advised Tudor that she felt appellant was preparing to leave the residence, because appellant might have detected the presence of the police officers. The informant also stated her belief that appellant might be destroying the evidence or getting ready to leave with the evidence. Based on this information, Detective Tudor, as the officer in charge of the operation, ordered the surveillance units to enter appellant's residence, in order to secure the evidence. Officers Marshall Depew, John Hoenstine, Steven Swarm, Jeff Poikey, and Tudor forced entry, identified themselves as police officers, and secured the residence. They did not have a search warrant.

Inside the residence were appellant, David Hornsby, and Cynthia White. All three were taken into custody as the police conducted a protective sweep of the house. While conducting the protective sweep, the police officers saw a plate with a small amount of white powder placed on a stereo speaker in the living room. The officers believed the powder was cocaine. Also, the officers found a

Page 1026

quantity of what they believed was marijuana on the kitchen table. The officers did not conduct a more extensive search, because they lacked a search warrant. After securing the residence, Officer Swarm wrote a probable cause affidavit, which Officer Tudor signed. Officers Tudor and Hoenstine left the residence to obtain a search warrant, while the other officers remained behind. Appellant, Hornsby, and White were handcuffed and seated on the floor of the living room.

Officers Tudor and Hoenstine returned with a search warrant. The police officers resumed the search of appellant's residence. The police officers located what they believed to be cocaine and marijuana, in various amounts, hidden throughout the house and in a storage shed behind the house. Also, the officers found a triple beam scale and an electronic scale in dresser drawers in the bedroom.

Before trial, appellant moved to suppress the evidence found in his residence following the warrantless entry, as well as the evidence gathered pursuant to the later issued search warrant. The trial court denied the motion. At trial, the prosecution introduced into evidence 27.5831 grams of cocaine, purchased during the controlled buy. The prosecution also introduced the following items into evidence, over appellant's objection: .1793 grams of cocaine found on the stereo speaker in the living room; 61.9002 grams of cocaine found in dresser drawers in one of the bedrooms; 3.2731 grams of cocaine found hidden in a gun rack; 111.1 grams of marijuana found in the kitchen freezer and on the kitchen table; 219.78 grams of marijuana found in a brown paper bag in a storage shed behind the house; 905.65 grams of marijuana found in dresser drawers in one of the bedrooms; photographs of the areas where the officers found cocaine and marijuana; and photographs of the two scales.


Appellant raises two issues for this Court's consideration:

1) whether the trial court erred in denying Esquerdo's Motion to Suppress the cocaine and marijuana seized before the warrant was obtained, as they were the fruits of a forced warrantless entry, where no exigency was shown to exist; and

2) whether the trial court erred in denying Esquerdo's Motion to Suppress as it related to contraband seized pursuant to the search warrant, as the warrant was the product of the poisoned fruits of the forced, warrantless entry.

I. The Initial Entry

The Fourth Amendment to the United States Constitution and Article I, § 11 of the Indiana Constitution protect citizens from state intrusions into their homes. The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. Article I, § 11 of the Indiana Constitution mirrors the Fourth Amendment to the U.S. Constitution. 1 These provisions prohibit warrantless entries into the home for purposes of arrest or search. Hawkins v. State (1993), Ind., 626 N.E.2d 436. "Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." Snellgrove v. State (1991), Ind., 569 N.E.2d 337, 340. Under these constitutional guarantees, a judicially-issued warrant must support any search of a person's residence.

However, as this Court previously noted, "on occasion the public interest demands

Page 1027

greater flexibility than is offered by the constitutional mandate ..." of the warrant requirement. Rabadi v. State (1989), Ind., 541 N.E.2d 271, 274. Although the warrant requirement is the rule, exceptions to it exist. When a search is conducted without a warrant, as it was in this case, the State bears the burden of justifying the search by proving that one of the exceptions to the warrant requirement applied to overcome the presumption of unreasonableness that accompanies all warrantless home entries. Hawkins, 626 N.E.2d 436. The State's burden at the trial or suppression hearing was to demonstrate that the warrantless search fell into one of the recognized exceptions to the warrant requirement.

The State sought to show that the police officers conducted the warrantless entry and seizure to prevent the destruction of evidence in the house. This is a recognized exception. Pursuant to this exception:

Exigent circumstances justifying a warrantless search exist where the police have an objective and reasonable fear that the evidence is about to be destroyed; the arresting officers must have a reasonable belief that there are people within the premises who are destroying or about to destroy the evidence. In such a case, the evidence's nature must be evanescent and the officers must fear its imminent destruction. The fact that narcotics are involved does not, standing alone, amount to exigent circumstances justifying a warrantless search or arrest.

Harless v. State (1991), Ind.App., 577 N.E.2d 245, 248 (citations omitted). The State was required to show evidence that the police had an objective and reasonable fear that the evidence was about to be destroyed. Hawkins, 626 N.E.2d at 439. Federal law requires this showing to be made by clear and convincing evidence. The trial court found that the State satisfied its burden under this exception. On appeal, we review the trial court's selection of the applicable legal standard under a de novo standard, but review its factual findings under the clearly erroneous standard. U.S. v. Tartaglia, 864 F.2d 837 (D.C.Cir.1989). We turn to the particular facts of the present case to determine whether the warrantless entry and search of appellant's residence, made pursuant to this exception to the search warrant requirement, was valid.

The police officers testified that their belief rested upon certain "beliefs" the confidential informant gave to the officers: that appellant was "paranoid"; that appellant "may have seen" the police officers outside the residence at the time of the controlled buy; and that appellant "might be destroying or getting ready to leave with the evidence." One officer opined that the ability of the units to conceal themselves had been limited and that they therefore...

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56 cases
  • Kendall v. State
    • United States
    • Court of Appeals of Indiana
    • April 18, 2005
    ...of police officers that evanescent evidence is in immediate danger of destruction by people within the premises. See Esquerdo v. State, 640 N.E.2d 1023, 1027 The first and central issue we address is whether it was permissible for Officer Tindall to peer through the window of 407 North Hami......
  • Kenner v. State, 49A04-9802-CR-89
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    ...would lead a reasonably prudent person to conclude that a search of those premises will uncover evidence of a crime. Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind.1994). As we discuss more fully below, Officer McDonald's search of Kenner's automobile occurred after a drug sniffing dog alert......
  • Overstreet v. State, 41S00-9804-DP-217.
    • United States
    • Supreme Court of Indiana
    • February 24, 2003
    ...should be based on the facts stated in the affidavit and the rational and reasonable inferences drawn therefrom." Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind.1994) (citations omitted). The duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis" for conc......
  • State v. Straub, 41A01-0101-CR-23.
    • United States
    • Court of Appeals of Indiana
    • May 30, 2001
    ...... Rabadi v. State, 541 N.E.2d 271, 274 (Ind.1989) . Although the warrant requirement is the rule, exceptions to it exist. Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind.1994) . These exceptions are "few in number and carefully delineated." United States District Court, 407 U.S. ......
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