Wilkins v. State Of Ind.
| Decision Date | 21 October 2010 |
| Docket Number | No. 02A03-0910-CR-451.,02A03-0910-CR-451. |
| Citation | 930 N.E.2d 652 |
| Parties | Damion WILKINS, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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Stanley L. Campbell, Fort Wayne, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
In this interlocutory appeal, Damion Wilkins (“Wilkins”) challenges the denial of his motion to suppress evidence obtained during the execution of a search warrant. We reverse.
Wilkins presents two issues for review: 1
I. Whether evidence should be suppressed because the search warrant was not supported by probable cause; and
II. Whether evidence should be suppressed because the search warrant was executed as a “no-knock” warrant in violation of his constitutional rights.
During 2008, Fort Wayne Police began receiving tips that Cornelius Lacey (“Lacey”) was selling marijuana and cocaine. They conducted surveillance of a business owned by Lacey and also conducted a trash pull at Lacey's residence on Pointe Center Cove in Fort Wayne. The trash included mail addressed to Wilkins. Investigating officers obtained a search warrant for execution at Lacey's residence and compiled information for the Fort Wayne Emergency Services Team regarding the criminal histories of both Lacey and Wilkins.
On December 5, 2008, the Fort Wayne Police Emergency Services Team arrived at the Pointe Center Cove residence to execute a search warrant directed toward evidence of illegal drugs and weapons. “A number of people,” including Lacey and Wilkins, were present inside the residence. (Tr. 20.) Team leader Thomas Strausborger, having been advised of the criminal histories of Lacey and Wilkins, decided to execute the search warrant in a no-knock fashion for officer safety. The door was breached by means of a ramming device, and the officers announced their presence only as they “were gaining entry.” (Tr. 14.)
Subsequent to the execution of the search warrant, Wilkins was charged with Unlawful Possession of a Firearm by a Serious Violent Felon, Indiana Code Section 35-47-4-5, and Possession of Marijuana, Indiana Code Section 35-48-4-11. On May 26, 2009, Wilkins moved to suppress evidence obtained in the execution of the search warrant, claiming that the warrant was not supported by probable cause and that the no-knock execution led to a seizure that violated his rights under the United States and Indiana Constitutions and Indiana Code Section 35-33-5-7.
After conducting a hearing, the trial court denied the motion. Wilkins sought permission to file an interlocutory appeal. We accepted jurisdiction and this appeal ensued.
The standard of appellate review of a trial court's denial of a motion to suppress is similar to other sufficiency issues. Litchfield v. State, 824 N.E.2d 356, 358 (Ind.2005). We determine whether substantial evidence of probative value exists to support the trial court's ruling. Id. We do not reweigh the evidence and we consider conflicting evidence most favorably to the trial court's decision. Id. We will affirm the trial court's ruling if it is sustainable on any legal grounds that are apparent in the record. Richardson v. State, 848 N.E.2d 1097, 1101 (Ind.Ct.App.2006) trans. denied.
Wilkins argues that the warrant for the search of Lacey's residence was not supported by probable cause, in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The Fourth Amendment provides: “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 1, Section 11 of the Indiana Constitution tracks the language of the Fourth Amendment almost verbatim.2
Although the residence of a person other than Wilkins was specified in the warrant, the State has made no assertion at the trial court level that Wilkins lacked standing 3 to present this claim, and may not do so for the first time on appeal. Everroad v. State, 590 N.E.2d 567, 569 (Ind.1992). In determining whether a person's Fourth Amendment rights have been violated, the U.S. Supreme Court has abandoned the concept of “standing” and has determined that “a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). However, analysis under the Indiana Constitution has retained a standing requirement in which “a defendant must establish ownership, control, possession, or interest in either the premises searched or the property seized.” Peterson v. State, 674 N.E.2d 528, 534 (Ind.1996).
Wilkins has failed to demonstrate an expectation of privacy in the place searched; thus, he cannot succeed upon a Fourth Amendment claim that the warrant to search Lacey's residence was issued absent probable cause. As to the claim under the Indiana Constitution, because the State did not raise lack of standing, we proceed to address Wilkins' argument that the search warrant was issued without probable cause.
Probable cause is a fluid concept having no precise definition. Bowles v. State, 820 N.E.2d 739, 747 (Ind.Ct.App.2005) trans. denied. It must be decided on a fact by fact basis. Id. In deciding whether to issue a search warrant, “ ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Jackson v. State, 908 N.E.2d 1140, 1142 (Ind.2009) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The reviewing court, which includes both the trial court ruling on a motion to suppress and an appellate court reviewing that decision, is to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed. Id. We focus upon whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Id. We review the trial court's “substantial basis” determination de novo, while nonetheless affording significant deference to the magistrate's determination. Id.
Here, the following information was set forth in the affidavit that was presented to the issuing judge. On May 20, 2008, Fort Wayne Police received an anonymous tip that marijuana was being sold by the pound from a business located at 5214 Decatur Road in Fort Wayne. On October 30, 2008, an individual arrested for possession of cocaine identified Lacey as the seller of the cocaine, and further advised that he had made numerous purchases of cocaine from Lacey at the Decatur Road location. Lacey's ownership of the business located at 5214 Decatur Road was established through Fort Wayne Police records of prior alarm calls at that address. Surveillance of the business premises revealed multiple brief stops by individuals. After Fort Wayne Police confirmed Lacey's home address, a trash pull was conducted at that residence. The trash search yielded tobacco mixed with a substance field tested as marijuana.4
Based on this information, there was a fair probability that contraband or evidence of a crime would be found at Lacey's residence. Accordingly, there was probable cause for the issuance of the search warrant.
II. No-Knock Warrant
Wilkins argues that Indiana Code Section 35-33-5-7 prohibits no-knock warrants in all circumstances. Alternatively, he argues that, in this case, there was insufficient justification for the officers' decision to dispense with the “knock and announce” rule and thus the seizure violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.5 He further argues that the appropriate remedy for the violation of his Constitutional and statutory rights is exclusion of the evidence.
In Beer v. State, 885 N.E.2d 33 (Ind.Ct.App.2008), we considered the claim that this statutory provision requires police officers to knock and announce their presence and authority in all instances. We initially noted that Indiana Code Section 35-33-5-7 “does not expressly 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.” Id. at 42. We further observed:
Ind.Code § 35-33-5-7 is not inconsistent with the knock and announce requirements set forth in case law from both the United States Supreme Court and our state courts. Indiana courts have held that it is well settled that the knock and announce requirement under the United States Constitution and the Indiana Constitution need not be adhered to blindly regardless of the particular circumstances confronting the authorities at the time the search is to be conducted. See Davenport v. State, 464 N.E.2d 1302, 1305 (Ind.1984).
Beer, 885 N.E.2d at 43. Ultimately, we concluded that “Indiana law supports no knock warrants under certain circumstances.” Id.
The Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement because the object of a criminal search is drugs. Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Rather, “[i]n order to justify a “no-knock” entry, the police must have a reasonable suspicion...
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