State v. Estep, 49A05-0009-CR-371.

• Citation: 753 N.E.2d 22
• Decision Date: 10 July 2001
• Docket Number: No. 49A05-0009-CR-371.,49A05-0009-CR-371.
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Samuel L. ESTEP, Appellee-Defendant.
• Court: Court of Appeals of Indiana

753 N.E.2d 22

STATE of Indiana, Appellant-Plaintiff, v. Samuel L. ESTEP, Appellee-Defendant.

No. 49A05-0009-CR-371.

Court of Appeals of Indiana.

July 10, 2001.

Karen Freeman-Wilson, Attorney General of Indiana, Adam Dulik, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Ellen M. O'Connor, Indianapolis, IN, Attorney for Appellee.

OPINION

MATTINGLY-MAY, Judge.

The State appeals the trial court's grant of Samuel Estep's Motion to Suppress evidence seized during Estep's arrest in his residence. The State makes two allegations of error: first, that the trial court's ruling on Estep's Motion to Suppress was contrary to law, and second, that the trial court applied the wrong legal standard when reviewing the issuance of the search warrant.

We affirm.¹

FACTUAL SUMMARY

On March 10, 1999, Sheriff's deputies received a Crime Stopper tip that Samuel Estep was residing at 241 North Reisner Avenue in Indianapolis. Deputies had previously obtained a warrant to arrest Estep for aggravated battery; that warrant listed Estep's last known residence as 242 North Reisner Avenue. On March 10, 1999, armed deputies went to 241 North Reisner and knocked on the front door with guns drawn. Estep opened the solid wooden door and remained standing in the residence behind a closed storm door while a deputy showed him the warrant. Estep opened the storm door, and deputies entered and immediately arrested him. Deputies then conducted a sweep of the entire residence, and in the course of that sweep they saw certain items of contraband, including green vegetation, a hand-rolled cigarette, a scale, and a handgun.² In addition, Estep had over $2,000.00 and some marijuana on his person.

Based on their findings, the warrant officers requested assistance from the narcotics unit, and narcotics detectives came to Estep's home. After viewing the items observed by the warrant officers, one of the narcotics detectives obtained a search warrant for the residence at 241 North Reisner. During the search of the residence, narcotics detectives found a baggie of rock cocaine and additional marijuana.³ Estep was then charged with dealing in cocaine, a Class A felony; possession of cocaine, a Class C felony; dealing in marijuana, a Class D felony; and possession of marijuana, a Class D felony.⁴

Estep filed a Motion to Suppress all evidence seized at his residence, and the trial court granted that motion with respect to everything except the items found on Estep's person. The State moved to dismiss all counts against Estep, and that motion was granted. The State then brought this appeal.⁵

STANDARD OF REVIEW

On appeal from the grant of a motion to suppress, the State appeals from a negative judgment and must show the trial court's ruling on the suppression motion was contrary to law. State v. Farber, 677 N.E.2d 1111, 1113 (Ind.Ct.App.1997). This court will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court. Id. This court neither reweighs the evidence nor judges the credibility of witnesses; rather, we consider only the evidence most favorable to the judgment. Id.

When a trial court enters findings sua sponte, those findings control only as to the issues they cover, and a general judgment will control as to the issues upon which there are no findings. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Finucane v. Union Planters Bank, N.A., 732 N.E.2d 175, 177 (Ind.Ct.App.2000).

DISCUSSION AND DECISION

Although the trial judge did not issue written findings, she did make the following statement when ruling on the Motion to Suppress:

[I]n this case the Defendant was at the door, opened the door, was right there. He could have just as easily been taken outside and I think I give a lot of leeway to protective searches or searches for officer safety but I just don't think you have to walk across the room and look in ashtrays and look down by chairs when you are doing a protective sweep, looking for somebody who might threaten your safety ... I think the protective sweep or the search for the officer's safety was far too extensive. So, the issue becomes whether the small amount of marijuana found on the Defendant and the money was sufficient probable cause to go ahead and sustain the affidavit for probable cause seeking the search warrant. Under the circumstances of this case, I am going to find it was not.

(R. at 363.)⁶ The trial court then suppressed all evidence found in Estep's residence except for the money and marijuana found on his person.

1. Suppression of Evidence Obtained Inside the Residence

In summary, the State argues that the trial court's ruling on the Motion to Suppress was contrary to law. It urges that the officers properly entered Estep's house to make the arrest and that the officers saw in plain view the evidence upon which the search warrant was based after their entry into the residence. Conversely, Estep argues that the officers did not lawfully enter his home and that therefore the "plain view" exception to the requirement of a search warrant does not apply in this case. Alternatively, he argues that even if the officers did have a right to enter his home to arrest him, the officers exceeded their limited right to enter and search for persons under the "protective sweep" doctrine, and therefore the evidence was properly suppressed.

Estep contends that the officers should have pulled him outside the front door and closed the door behind him without conducting a protective sweep of the residence prior to arresting him. Sergeant Brad Shoemaker testified that the officers could have arrested Estep outside his residence:

Q: Okay. So he opened the door, you've got you and another officer on the porch, and you have other officers around, so you could have had him come up on, come out on the porch, handcuffed him, and taken him away.

A. We could have done that? I suppose we could have done that, yes.

(R. at 154.) The State argues the officers properly entered Estep's residence to make the arrest, citing Maryland v. Buie, 494 U.S. 325, 330, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990): "If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law."

Clearly, law enforcement officers have a right to enter a suspect's home with an arrest warrant if he is attempting to hide from law enforcement in his home: "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Additionally, Ind.Code § 35-33-2-3(b) provides that "[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." (Emphasis added.) We find that the existence of a valid arrest warrant for Estep combined with the holdings in Buie and Payton provide sufficient justification for the officers' entry to arrest Estep. However, we are not satisfied that the officers' actions after entry were equally justified, when they not only entered but remained after completing the arrest, and thus placed themselves in a position to conduct a protective sweep and see the items of contraband they seized.

Our supreme court has previously recited the circumstances under which a protective sweep may take place:

[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene ... We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

Smith v. State, 565 N.E.2d 1059, 1061-62 (Ind.1991) (overruled on other grounds by Albaugh v. State, 721 N.E.2d 1233, 1235 (Ind.1999)), quoting Buie, 494 U.S. at 334-35, 110 S.Ct. 1093. Thus, a protective sweep is authorized under Buie either of rooms immediately adjoining the place of the arrest (without need for officer suspicion), or of areas that might, given facts articulable by the searching officer, contain a hiding person who might jeopardize officers safety. These two prongs of the Buie holding are considered in reverse order in the following paragraphs.

The State does not make an argument under either prong of Buie other than to cite the case generally as authority for the proposition that police could enter Estep's residence. Nor does the State address the scope of the protective sweep. Instead, the State simply argues that once officers were properly inside the residence, they could seize contraband under the plain view doctrine.

Estep argues generally under Buie that the police did not cite articulable facts justifying a sweep. Although Estep does not explicitly phrase it as such, this statement could be viewed as an argument under the second prong of Buie. To...