Mowrer v. State

Decision Date19 April 1983
Docket NumberNo. 4-782A164,4-782A164
Citation447 N.E.2d 1129
PartiesJerry O. MOWRER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Richard Kammen, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

After a bench trial, defendant-appellant Jerry O. Mowrer was convicted of possession, with intent to deliver, of lysergic acid diethylamide, a Class B felony 1, and possession, with intent to deliver, of diazepam, a Class C felony 2.

He appeals, asserting the following errors:

1) The court erroneously refused to suppress evidence obtained from the illegal arrest of the appellant.

2) The court erroneously refused to suppress evidence gathered in a search of the appellant's hotel room pursuant to an invalid search warrant.

3) The evidence was not sufficient to support the trial court's judgment.

Because Mowrer's arrest and the subsequent search of his room were illegal under the Fourth Amendment limits on search and seizure, we do not reach the sufficiency issue. We reverse.

The facts most favorable to the trial court's judgment are as follows: About February 27, 1980, an informant told Det. Sgt. Michael Bolin, an Indiana State Police narcotics officer, that an unnamed individual would soon come from California to Indiana to sell L.S.D. to one Roy Burger of Jasper, Indiana. On March 4, 1980, Det. Sgt. Richard Badics, a South Bend police officer, told Officer Bolin that an informant had told him that one Jerry Mowrer would be coming to Indianapolis from Westminster, California on March 5 to sell L.S.D. to someone named Burger. Checking Indianapolis hotels after these tips, the police learned that a J. Mowrer was registered in Room 1922 of the Hyatt Regency Hotel in Indianapolis. Bolin, Badics, and four other Indiana State Police officers went to the hotel and began watching Room 1922 from an adjoining room. This surveillance began at 3 a.m. on March 5, 1980. At 1:26 that afternoon, the officers saw Mowrer leave the room and enter the elevator, returning two minutes later with two other men. The three reentered Room 1922. At this point, the six officers positioned themselves outside the door of Room 1922. When, at 2:20, one of the room's occupants opened the door to leave, the officers burst into the room and arrested the four men they found inside. In the room, the officers observed a white powder residue on the table and the dresser and three suitcases near the door. In a search incident to the warrantless arrest, the officers found a key to one of the suitcases in Mowrer's pocket. The officers then obtained a search warrant for the room and the suitcases. In one suitcase (which could be unlocked with Mowrer's key) they found thousands of L.S.D. and Diazepam tablets. In another suitcase, which the defendant admitted he owned, they found $7,000.00 and more Diazepam.

Mowrer first challenges the use of evidence seized in the search incident to his warrantless arrest. He claims that the arrest itself was illegal because it was made without a warrant. 3 In support of this claim, Mowrer cites the recent Supreme Court decision in Payton v. New York, (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. 4 In Payton, the Court held that, absent exigent circumstances, an officer may not enter a suspect's home to make an arrest without a warrant. Noting that intrusions into the home are "the chief evil against which the wording of the Fourth Amendment is directed," id. 445 U.S. at 585, 100 S.Ct. at 1379, the Court said, "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 590, 100 S.Ct. at 1382. Relying on Payton, Mowrer argues that he was illegally arrested, since the arrest was made in his hotel room without a warrant.

The first issue raised by this contention is whether Mowrer's hotel room was his "home" within the meaning of Payton. Clearly, the warrant requirement of Payton does not extend to all premises in which a person has a reasonable expectation of privacy. 5 Thus, the question is not whether Mowrer had a reasonable expectation of privacy in his room, but whether he had the same expectation of security from intrusion as he would have had in his own home. United States v. Bulman, (11th Cir.1982) 667 F.2d 1374, 1383, cert. denied sub nom. Howard v. United States, (1982) --- U.S. ----, 102 S.Ct. 2305, 73 L.Ed.2d 1307. Other courts have uniformly found that a person's hotel room is a "home" for Fourth Amendment purposes. United States v. Bulman, supra; Scroggins v. State, (Ark.1982) 276 Ark. 177, 633 S.W.2d 33; Engle v. State, (Fla.Dist.Ct.App.1980) 391 So.2d 245; People v. Eichelberger, (1982) 91 Ill.2d 359, 63 Ill.Dec. 402, 438 N.E.2d 140, cert. denied, (1983) --- U.S. ----, 103 S.Ct. 383, 74 L.Ed.2d 514; State v. Holtz, (Iowa 1981) 300 N.W.2d 888; State v. Pool, (N.M.App.1982) 98 N.M. 704, 652 P.2d 254. In this case, Mowrer had spent the night in the room and ate a meal there just before the arrest. Mowrer's hotel room was clearly his transitory home.

The dissent contends, however, that Mowrer lost this Fourth Amendment protection by doing business--allegedly selling drugs--in his room. The warrant requirement for in-home arrests has been held not to extend to an arrest on the suspect's business property, even where the place was not open to the public. United States v. Blalock, (9th Cir.1978) 578 F.2d 245 (arrest in suspect's shop during business hours); United States v. Ponce, (S.D.N.Y.) 488 F.Supp. 226 (arrest in a warehouse). These cases are, however, distinguishable from the present one. First, unlike the suspect's shop in Blalock, supra, Mowrer's hotel room was not held open to the general public during business hours. Further, and more importantly, Mowrer's room was his residence, whereas the premises in Ponce and Blalock, supra, were used solely for business. The point of these cases is that purely commercial premises are, by definition, not residential. There is no support in these cases, or in any others we have found, for the proposition that a home ceases to be a home under the Fourth Amendment when the occupant does business in it. 6 Because the alleged drug sale here had no effect on Mowrer's reasonable expectation of security from arrest in his room, we hold that his hotel room was his "home" within the meaning of Payton.

The State argues that Payton's warrant requirement should not be applied in this case because "the arrest occurred as the persons in the room were attempting to exit the hotel room," so that there was "no indication of any privacy or security expectation on the part of defendant and the others." The State cites no authority, but the allusion is apparently to cases such as United States v. Santana, (1976) 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300, in which the Court upheld the arrest of a suspect as she stood in her doorway. In so holding, the Court reasoned that Santana was essentially in a "public" place: "[s]he was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house." Id. at 42, 96 S.Ct. at 2409. Since Santana, a number of cases have also upheld arrests made when the suspect came to the door after the police had knocked and identified themselves. United States v. Botero, (9th Cir.1978) 589 F.2d 430, cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979); People v. Burns, (Colo.1980) 200 Colo. 387, 615 P.2d 686. The principle of these cases seems to be that the constitutional protection of the home does not extend to those who voluntarily expose themselves to seizure by stepping into the open doorway. In this case, however, there was no evidence that the defendant voluntarily exposed himself to seizure. One officer described the arrest as follows:

Q. What happened then?

A. The door opened to room 1922 and as the door became unlatched, we burst into the room and announced ourselves as police officers and arrested everyone in the room.

Q. How did the door open; did you open the door?

A. No, the door was opened from someone inside in the room.

The testimony of another of the arresting officers was similar:

Q. Well, what time did you make the arrest?

A. At approximately 2:20 p.m.

Q. And that was at a time when Mr. Beck and Mr. Haller were exiting Room # 1922?

A. Yes.

Q. Did they get out into the hall?

A. No.

Thus, it is undisputed that Mowrer was not found standing in the doorway; nor did he expose himself to arrest voluntarily. Rather, as the door opened, the arresting officers burst unannounced into the room. By doing so, they crossed the "firm line" which the Fourth Amendment "draws at the entrance to the house." This is precisely the sort of arrest that cannot be made without a warrant under Payton.

The State argues, however, that the warrant requirement should not be applied to this case because exigent circumstances prevented the arresting officers from getting a warrant. No warrant is required where exigent circumstances make procuring a warrant impracticable. Harrison v. State, (1981) Ind.App., 424 N.E.2d 1065, 1068. In this case, the arresting officers had gotten the tip implicating Mowrer on March 4, 1980, and had located him in his hotel by 3 a.m. on March 5. The arrest occurred at 2:20 that afternoon. Thus, the police had the information allegedly constituting probable cause for the arrest for nearly twelve hours prior to the arrest. This arrest took place on a weekday, in a hotel not far from the Marion County courts; one of the six officers watching Mowrer's room could easily have gotten a warrant after the courts opened. Nothing in the record supports a finding that Mowrer would have escaped or destroyed the evidence...

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