Lacey v. State

• Decision Date: 10 May 2011
• Docket Number: No. 02S05–1010–CR–601.,02S05–1010–CR–601.
• Citation: 946 N.E.2d 548
• Parties: Cornelius Tyrone LACEY, Sr., Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

946 N.E.2d 548

Cornelius Tyrone LACEY, Sr., Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 02S05–1010–CR–601.

Supreme Court of Indiana.

May 10, 2011.

Harold W. Myers, Wyss, Morgan & Myers, P. Stephen Miller, Fort Wayne, IN, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Transfer from the Indiana Court of Appeals, No. 02A05–0910–CR–562.

DICKSON, Justice.

In this interlocutory appeal, the defendant challenges the trial court's denial of his motion to suppress evidence obtained from the execution of a search warrant by police forcing their way into his residence without first knocking and announcing their presence. The Court of Appeals reversed. Lacey v. State, 931 N.E.2d 378 (Ind.Ct.App.2010). We granted transfer and hold that the Indiana Constitution does not require prior judicial authorization for the execution of a warrant without knocking and announcing when justified by exigent circumstances known by police when the warrant was obtained. Because judicial officers may issue advance authorizations for police to bypass the knock and announce requirement, however, the better police practice is to minimize legal uncertainty by seeking such advance approval when supported by facts known when the warrant is sought.

Co-defendants Cornelius Lacey and Damion Wilkins are each charged with Unlawful Possession of a Firearm by a Serious Violent Felon and Possession of Marijuana. Additionally, Lacey is charged with Maintaining a Common Nuisance. The evidence to support these charges was obtained as a result of a police search of Lacey's residence in Fort Wayne, Indiana, pursuant to a search warrant that was executed by police officers without first knocking and announcing their presence. The trial court denied the defendant's motion to suppress evidence but authorized an interlocutory appeal of its ruling, and the Court of Appeals accepted jurisdiction. Ind. Appellate Rule 14(B).

The defendant's interlocutory appeal argues in the alternative that (a) the search warrant was not supported by probable cause, and (b) even if the warrant was valid, it was executed without compliance with the knock and announce requirement in violation of state constitutional law. Finding probable cause for the issuance of the search warrant of the defendant's residence, the Court of Appeals rejected the first argument but concluded that the officers' decision in this case to enter the residence without knocking and announcing their authority violated the Search and Seizure Clause of the Indiana Constitution ¹ and that suppression of the resulting evidence was the appropriate remedy.² We summarily affirm the Court of Appeals as to the first issue, the sufficiency of probable cause for the issuance of the warrant. Ind.App. R. 58(A)(2).

As to the remaining issue, the manner of execution of the warrant, the defendant's argument on appeal contends that the exigent circumstances asserted by the State to justify the “no-knock” entry were known when the warrant was sought but were not provided to the issuing magistrate, and the police neither sought nor received explicit authorization from the magistrate to dispense with the knock and announce procedure. While asserting that Indiana Code § 35–33–5–7(d) provides for a knock and announce requirement, the defendant acknowledges that Indiana law permits the execution of a warrant without an announcement of presence and purpose if exigent circumstances exist. The defendant's interlocutory appeal does not argue that the factors actually relied on by the police were inadequate exigent circumstances to justify the no-knock entry but rather that they should have been previously presented to a magistrate and a no-knock warrant obtained.

The State responds that the knock and announce procedure is not absolute and that the no-knock entry here was justified because of the concern for police officer safety after police thoughtfully considered the two co-defendants' histories including an arrest for criminal recklessness, a conviction for dealing in cocaine, a bond revocation warrant that indicated Lacey may be armed, and a conviction for armed robbery and resisting arrest.³ The decision whether to knock and announce, the State argues, must be made by police considering the circumstances at the time a warrant is executed, not in advance by a magistrate when issuing the warrant.

This Court has long recognized that the Indiana Constitution's provision dealing with searches and seizures requires “that the police knock and announce their authority before conducting a search of a dwelling.” State v. Dusch, 259 Ind. 507, 512, 289 N.E.2d 515, 517 (1972). This requirement, however, “is not to be adhered to blindly regardless of the particular circumstances confronting the authorities at the time the search is to be conducted.” Id. In Dusch, this Court noted that such requirement may not apply when the facts present sufficient exigent circumstances. Id. at 512–13, 289 N.E.2d at 518. Subsequent Indiana appellate decisions have applied Dusch to find that police should knock and announce their authority before conducting a search; such procedure is not absolute, being subject to exigent circumstances; and reasonableness of police conduct is the touchstone for consideration. See Moran v. State, 644 N.E.2d 536 (Ind.1994); Davenport v. State, 464 N.E.2d 1302 (Ind.1984); Beer v. State, 885 N.E.2d 33 (Ind.Ct.App.2008), trans. not sought; Willingham v. State, 794 N.E.2d 1110 (Ind.Ct.App.2003), trans. not sought; Crabtree v. State, 479 N.E.2d 70 (Ind.Ct.App.1985), trans. not sought; Cannon v. State, 414 N.E.2d 578 (Ind.Ct.App.1980), trans. not sought.

In recent years, this Court has expressed that “[t]he legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005) (citing Moran, 644 N.E.2d at 539). To determine whether a residential entry violated Article 1, Section 11, we apply a “totality-of-the-circumstances test to evaluate the reasonableness of the officer's actions.” Duran v. State, 930 N.E.2d 10, 17 (Ind.2010). A more elaborate explanation and methodology for evaluating such reasonableness is provided in Litchfield:

In sum, although we recognize there may well be other relevant considerations under the circumstances, we have explained reasonableness of a search or seizure as turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.

824 N.E.2d at 361.

The defendant directs our attention to the statutory provision related to the knock and announce requirement, Indiana Code § 35–33–5–7(d), which provides:

A law enforcement officer may break open any outer or inner door or window in order to execute a search warrant, if he is not admitted following an announcement of his authority and purpose.

This provision applies to search warrants. Ind.Code § 35–33–5–7(a). There is a parallel statutory provision for arrest warrants. It provides, in relevant part:

A law enforcement officer may break open any outer or inner door or window in order to execute an arrest warrant, if he is not admitted following an announcement of his authority and purpose.

Ind.Code § 35–33–2–3(b). In the context of the former provision regarding search warrants, the Court of Appeals in Beer not only held that Indiana law permits no-knock warrants but also emphasized that the statute does not “prohibit entry without announcing the law enforcement officer's authority and purpose when there are exigent circumstances or when it would be dangerous to officers or others to make such an announcement.” 885 N.E.2d at 42. The logic of this observation applies equally to the execution of arrest warrants. As noted in Beer, “[t]he legislature has made it clear that execution of a warrant cannot be frustrated by refusal of entry or silence.” Id.

The major thrust of the defendant's argument is that the Search and Seizure Clause in Article 1, Section 11 should be interpreted to require law enforcement to obtain prior express authorization from the judicial officer issuing the warrant if the grounds for bypassing the knock and announce procedure are based solely upon facts known when the warrant is sought. The use of no-knock warrants has been previously approved. Id. at 47. But Indiana jurisprudence has not confronted whether police must obtain no-knock warrants when justified solely by information known at the time of warrant application.

Other jurisdictions have addressed the use of no-knock warrants. They are permitted in the federal courts.

The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time. But ... a magistrate's decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.

Richards v. Wisconsin, 520 U.S. 385, 396 n. 7, 117 S.Ct. 1416, 1422 n. 7, 137 L.Ed.2d 615, 625 n. 7 (1997). Judicial opinions in Florida, Oregon, and Virginia have declared that a magistrate lacks the authority to issue a no-knock warrant and that the determination to bypass the knock and announce procedure is to be made only by the executing officers at the time of execution.⁴ Ten states, including Indiana, have recognized judicially the validity of the practice of magistrates issuing no-knock warrants. ⁵ But we find only one jurisdiction whose opinions require police to inform the issuing magistrate of the...