State v. Dusch

Citation259 Ind. 507,289 N.E.2d 515
Decision Date27 November 1972
Docket NumberNo. 571S138,571S138
PartiesSTATE of Indiana, Appellant, v. Robert Lee DUSCH, Michael J. Simpson, Appellees.
CourtSupreme Court of Indiana

William J. Brune, Pros. Atty., John F. Davis, Chief Deputy Prosecutor, Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellant.

John Coates Cox, Philip H. Hayes, John D. Clouse, Evansville, for appellees.

DeBRULER, Justice.

Appellees here were charged with a violation of the Indiana Dangerous Drug Act, I.C.1971, 16--6--8--3, being Burns § 35--3333, and the 1935 Narcotics Act, I.C.1971, 35--24--1--2, being Burns § 10--3520, by having in their possession a quantity of marijuana and pills containing barbituric acid. Trial was held in the Vanderburgh Circuit Court, the Honorable William H. Miller presiding. During the State's case-in-chief, the prosecutor sought to have introduced into evidence certain substances purported to be illicit drugs which were found in the apartment of the appellees during a search conducted by the police. Appellees filed a motion to suppress this evidence as being seized in violation of the Federal and State Constitutions because the police had made an unannounced entry into the appellees' apartment. The judge granted this motion on the grounds that a reasonable entry requires announcement of both authority and purpose, unless unusual circumstances exist at the time of the police entry and that no such circumstances existed here. The State then rested its case and, on motion by the appellees, Judge Miller entered judgment of acquittal for the appellees. The State excepted to the ruling of the court on the suppression motion and appeals on a reserved question of law pursuant to I.C.1971, 35--1--43--2 and 35--1--47--2, being Burns §§ 9--2102 and 9--2304.

Evidence at the suppression hearing showed that Sergeant Jack Eads of the Indiana State Police swore out an affidavit on December 4, 1970, in which he stated that an unnamed informer had that day told him he had observed a quantity of LSD in an apartment located at 1139 Southeast First Street in Evansville, Indiana. Sergeant Eads was issued a search warrant based on this affidavit. Sergeant Eads then proceeded to the address with four other police officers and surrounded the house. At a pre-arranged signal officers at both the back and front doors of the apartment broke open the doors and rushed in. Neither group of officers knocked or announced their authority before breaking in the doors. Inside the apartment they found the defendant, Robert Dusch, alone and upon searching the premises found what appeared to be marijuana and some pills. At the suppression hearing both sides stipulated that the police did not request admittance to the apartment before breaking in.

Both the Fourth Amendment to the Federal Constitution and Art. 1, § 11 of the Indiana Constitution have substantially identical language which 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.'

The appellees in the trial below claimed that included in the constitutional definition of reasonableness is the requirement that the police enter a dwelling in a reasonable manner when executing a search warrant and that this has long been construed to mean that the police must announce their authority and purpose. In addition before they may break down a door of a house they must give the inhabitants a reasonable opportunity to respond to their authority and let them enter in a peaceable manner.

This knock and announce procedure has a long history in our common law tradition with roots as far back as the early Seventeenth Century. 1 The United States Supreme Court in a case in which it was called upon to construe a federal knock and announce statute referred to the requirement as being a part of our common law tradition. Miller v. United States (1958), 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332. There has only been one time, however, when that court faced the issue of whether the knock and announce requirement was one of constitutional proportions and whether it was applied to the states through the Fourteenth Amendment. In the separate opinions in Ker v. California (1964), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, the court seemed to divide somewhat on the kind of exigent circumstances which would permit an unannounced entry, but the thrust of the opinions of eight of the nine justices indicates that an announcement of authority requirement is embodied in the Fourth Amendment as it applies to the states. In a later case which concerned the Federal Supreme Court's supervisory powers over federal law, but did not directly bear on a constitutional interpretation, the court seemed to reiterate its feelings that the knock and announce requirement is of constitutional dimensions. Sabbath v. United States (1968), 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828, fn. 8 at 591.

The law of the State of Indiana is quite specific in holding that an announcement of authority is required before the police may enter a dwelling. In Speybroeck v. State (1927), 200 Ind. 69, 155 N.E. 817, we clearly stated that:

'one of the essentials of such a search is that the officer must make known the authority under which he acts.' 200 Ind. at 72, 155 N.E. at 818.

Furthermore we have found that fruits of a search conducted without a prior announcement of authority shall be excluded from evidence at trial:

'The warrant here was neither read nor referred to by the officers until after the search was made. The search was therefore unlawful, and, under the rule of law established in this state by Callender v. State (1922), 193 Ind. 91, 138 N.E. 817, and the cases following it, the evidence obtained thereby was not admissible against the owner or manager of the premises.' 200 Ind. at 73, 155 N.E. at 818.

Cases decided in this State concerning the problem of easily disposable evidence demonstrate the high regard both the courts and the police have demonstrated in the past for the knock and announce requirement. In Schreiber v. State (1928), 201 Ind. 37, 164 N.E.2d 258, the defendant was charged with maintaining a public nuisance by selling liquor from his house. The police secured a search warrant and as they approached the house to search it the defendant's wife saw them, ran inside and bolted the door. Despite this obvious knowledge of the officers' presence the police knocked on the door and announced their authority before entering.

In the case of Jones v. State (1929), 89 Ind.App. 564, 166 N.E. 158, transfer den'd, 202 Ind. 365, 174 N.E. 812, the police had raided a particular home four or five times and each time found that the intoxicating liquor, which was the object of the search, had been disposed of while they announced their authority. The officers had even uncovered a system of electrical lights which was operated as a signal to warn the people in the back of the house to dispose of the liquor. In spite of this indication that these particular defendants had previously destroyed evidence upon threat of an imminent search and in fact had erected a system which would aid them in the future to do just that the police announced their authority on the last raid at the outer door and only broke into the back room when noises of running and clanking of glasses indicated that the evidence was again being destroyed. The Court of Appeals in that case held that...

To continue reading

Request your trial
30 cases
  • State v. Sakellson, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • 18 de dezembro de 1985
    ...Ker v. California, supra; United States v. Baker, 638 F.2d 198 (10 Cir.1980); People v. Rosales, supra; State v. Dusch, 259 Ind. 507, 289 N.E.2d 515 (1972); People v. Floyd, 26 N.Y.2d 558, 312 N.Y.S.2d 193, 260 N.E.2d 815 (1970); State v. Rhodes, 54 N.C.App. 193, 282 S.E.2d 809 (1981); Comm......
  • State v. Stevens, 92-1557-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 12 de outubro de 1993
    ...Cal.Rptr. 10, 12, 432 P.2d 706, 708 (1967); Connecticut v. Anonymous, 40 Conn.Supp. 20, 480 A.2d 600, 605 (1984); Indiana v. Dusch, 259 Ind. 507, 289 N.E.2d 515, 518 (1972); Crabtree v. State, 479 N.E.2d 70, 74 (Ind.App.1985); Illinois v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 667-68, 4......
  • U.S. v. Moore, 90-2330
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 12 de fevereiro de 1992
    ...A.2d 251, 252 (1973); People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 669-70, 401 N.E.2d 507, 510-11 (1979); State v. Dusch, 259 Ind. 507, 289 N.E.2d 515, 518 (1972); Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818, 823 (1982); State v. Daniels, 294 Minn. 323, 200 N.W.2d 403, 41......
  • Turner v. Sheriff of Marion County, IP97-2013-C-F/D.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 1 de março de 2000
    ...v. State, 464 N.E.2d 1302, 1305 (Ind.), cert. denied, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984); State v. Dusch, 259 Ind. 507, 512, 514, 289 N.E.2d 515, 517, 518 (Ind. 1972). After an announcement is made, occupants must have a reasonable opportunity to respond and allow peaceful ......
  • Request a trial to view additional results
1 books & journal articles
  • Fourth Amendment - must police knock and announce themselves before kicking in the door of a house?
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 No. 4, June 1996
    • 22 de junho de 1996
    ...note 57, at 551 (1964). (150) E.g., United States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th. Cir. 1973) (yes, citing Ker); State v. Dusch, 289 N.E.2d 515, 516-17 (Inc. 1972) (yes, citing Ker and Sabbath); State v. Valentine, 504 P.2d 84, 85 (Or. 1972) (en bane) (yes, citing Ker), cert. denied......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT