State v. Straub, No. 41A01-0101-CR-23.

• Docket Nº: No. 41A01-0101-CR-23.
• Citation: 749 N.E.2d 593
• Case Date: May 30, 2001
• Court: Court of Appeals of Indiana

749 N.E.2d 593

STATE of Indiana, Appellant-Plaintiff,
v.
Joseph STRAUB, Appellee-Defendant

No. 41A01-0101-CR-23.

Court of Appeals of Indiana.

May 30, 2001.

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Steve Carter, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General Indianapolis, IN, Attorney for Appellant.

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OPINION

ROBB, Judge.

The State brings this interlocutory appeal of the trial court's order granting Joseph Straub's motion to suppress his statements to the police. We reverse.

Issue

The State raises the following restated issue for our review: whether the trial court properly granted Straub's motion to suppress.¹

Facts and Procedural History

The facts reveal that around 3:40 a.m. on January 26, 1999, Officer Grable was sitting in his patrol car when he observed a truck with an attached snowplow closely following another truck. Thereafter, the driver of the lead trunk informed Officer Grable that the individual driving the truck with the attached snowplow was driving erratically and had repeatedly dropped the snowplow on the road causing sparks as the blade grazed the pavement. Officer Grable then searched for the truck but did not activate his sirens or emergency lights. A short time later, Officer Grable observed the truck traveling away from him without any lights. He attempted to follow the vehicle but lost sight of the truck as it turned onto another street. Thereafter, Officer Grable tried to cut the truck off but the vehicle never emerged from the street upon which Officer Grable had earlier seen the truck travel.

Subsequently, Officer Grable saw Straub run down a hill, lose his footing, and fall to the ground near the area where he had earlier lost sight of the truck. Officer Grable yelled "stop, police," but Straub got up from the ground and continued to run away from him. Straub continued to ignore Officer Grable's audible commands to stop and eventually entered an apartment later determined to be his residence. Officer Grable, who was not far behind, drew his weapon, entered the apartment, and ordered Straub to come outside. As Straub emerged from the apartment Officer Grable noticed a strong odor of alcohol emanating from Straub. Subsequently, Straub was placed in handcuffs and transported to the local jail where a chemical breath test revealed that he had a .17% blood alcohol content.

Consequently, the State charged Straub with operating a motor vehicle while intoxicated²

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and operating a motor vehicle while intoxicated with a prior conviction of operating while intoxicated.³ On January 26, 2000, Straub filed with the trial court a motion to suppress his post-arrest statements to the police. Following a hearing, the trial court granted Straub's motion to suppress. Subsequently, the State filed a motion to correct error with the trial court, a motion that was later denied. This interlocutory appeal ensued pursuant to Indiana Code section 35-38-4-2

Discussion and Decision

The State contends that the trial court abused its discretion in granting Straub's motion to suppress. We agree.

I. Standard of Review

In reviewing a motion to suppress, we do not reweigh the evidence, but determine if there is substantial evidence of probative value to support the trial court's ruling. Carter v. State, 686 N.E.2d 1254, 1258 (Ind.1997). We look to the totality of the circumstances and consider all uncontroverted evidence together with conflicting evidence that supports the trial court's decision. Haviland v. State, 677 N.E.2d 509, 513 (Ind.1997).

II. The Fourth Amendment

We are presented with the question of whether Officer Grable was justified in entering Straub's residence without a warrant. The Fourth Amendment to the United States Constitution and Article I, section 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.

Article I, section 11 of the Indiana Constitution mirrors the Fourth Amendment to the U.S. Constitution. It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). A principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter a residence for purposes of search or arrest. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Thus, searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

However, "on occasion the public interest demands greater flexibility than is offered by the constitutional mandate" of the warrant requirement. 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. at 318, 92 S.Ct. 2125. Exigent circumstances have been found: (1) where a suspect is fleeing or likely to take flight in order to avoid arrest; (2) where incriminating evidence is in jeopardy of being destroyed or removed unless an immediate arrest is made; (3) where a violent crime has occurred and entry by

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police can be justified as means to prevent further injury or to aid those who have been injured; and (4) in cases that involve hot pursuit or movable vehicles. Snellgrove v. State, 569 N.E.2d 337, 340 (Ind.1991). The burden is on the prosecution to demonstrate exigent circumstances to overcome the presumption of unreasonableness that accompanies all warrantless home entries. Payton, 445 U.S. at 586, 100 S.Ct. 1371

The arrest of a person is quintessentially a seizure. See id. at 585, 100 S.Ct. 1371. It has long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause. See United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). However, the United States Supreme Court has drawn the line at the entrance of a dwelling, holding that the Fourth Amendment prohibits the police, absent exigent circumstances, from making warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest even when the police have probable cause to do so. Payton, 445 U.S. at 576, 100 S.Ct. 1371. Indeed, "[t]here is no question that police are required by the federal constitution to obtain a warrant to arrest a suspect who hunkers down inside his home and refuses to leave or answer the door." Cox v. State, 696 N.E.2d 853, 858 (Ind.1998). With regard to minor offenses, the Court has stated that the presumption of unreasonableness which attaches to the warrantless entry by the police into a home is difficult to rebut, and that the government should usually be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. Welsh, 466 U.S. at 750, 104 S.Ct. 2091. The validity of a warrantless arrest is determined by the facts and circumstances of each case. Tata v. State, 486 N.E.2d 1025, 1028 (Ind.1986).

A. Reasonable Suspicion

Our initial inquiry is to determine if Officer Grable had reasonable suspicion to conduct an investigatory stop of Straub as he viewed him running down a hill. An investigatory stop of a citizen by a police officer does not violate that citizen's constitutional rights where the police officer has a reasonable articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Probable cause is not necessary. Id. What constitutes reasonable suspicion is determined on a case-by-case basis, and the totality of the circumstances is considered. Baran v. State, 639 N.E.2d 642, 644 (Ind.1994); Platt v. State, 589 N.E.2d 222, 226 (Ind.1992). Reasonable suspicion entails some minimum level of objective justification for making a stop; something more than an inchoate and unparticularized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. Cardwell v. State, 666 N.E.2d 420, 422 (Ind.Ct. App.1996), trans. denied. In judging the reasonableness of Terry stops, courts must strike a balance between the public interest and the individual's right to personal security free from arbitrary interference by law enforcement officers. Stalling v. State, 713 N.E.2d 922, 924 (Ind.Ct.App. 1999). The State has legitimate concerns in deterring driving while intoxicated. See State v. Garcia, 500 N.E.2d 158, 161 (Ind. 1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987).

Prior to seeing Straub running down the hill, Officer Grable had observed the truck with an attached snowplow closely following another vehicle. R. 100. Shortly thereafter, a concerned citizen informed Officer Grable that the truck with

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the snowplow was driving erratically and that the driver was obviously drunk. R. 111. Anonymous or unidentifiable informants can supply information that gives police reasonable suspicion. Bogetti v. State, 723 N.E.2d 876, 879 (Ind.Ct.App. 2000). "A tip will be deemed reliable when an individual provides specific information to the police officers such as vehicle description." Id. (citing Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind.1997)). It is apparent from the record that the concerned citizen gave a reliable description of the truck to...