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«CLERK IN THE of the supreme court, court of appeals and tax court COURT OF APPEALS OF INDIANA CHARLES ADAM TROTTER, ) ) ...»

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FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

RODNEY T. SARKOVICS GREGORY F. ZOELLER

Campbell Kyle Proffit LLP Attorney General of Indiana

Carmel, Indiana

NICOLE M. SCHUSTER

Deputy Attorney General

Indianapolis, Indiana FILED Sep 10 2010, 9:41 am CLERK IN THE of the supreme court, court of appeals and tax court

COURT OF APPEALS OF INDIANA

CHARLES ADAM TROTTER, )

) Appellant-Defendant/Cross-Appellee, ) ) vs. ) No. 29A02-0910-CR-974 ) STATE OF INDIANA, ) ) Appellee-Plaintiff/Cross-Appellant. )

INTERLOCUTORY APPEAL FROM THE HAMILTON SUPERIOR COURT

The Honorable Wayne A. Sturtevant, Judge Cause No. 29D05-0904-FD-1964 September 10, 2010

OPINION - FOR PUBLICATION

CRONE, Judge Case Summary Charles Adam Trotter brings this interlocutory appeal from the trial court‟s denial of his motion to suppress evidence regarding observations of police officers obtained upon their warrantless entry into a private residence. The trial court concluded that, although the warrantless entry was unlawful pursuant to both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution, evidence of the officers‟ observations is nevertheless admissible pursuant to the doctrine of attenuation. By way of cross-appeal, the State challenges the trial court‟s threshold determination that police officers unlawfully entered the private dwelling. We reverse and remand.

Issues

Both Trotter and the State raise issues for our review, which we reframe as follows:

I. Whether the warrantless entry into a private residence violated the Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution; and Whether evi

–  –  –

On April 4, 2009, at approximately 11:46 p.m., Carmel Police Officer David Henry responded to a complaint of gunshots fired in a backyard near 146th Street and Towne Road.

After arriving in the area, Officer Henry heard what he believed to be shotgun fire coming from the north in Westfield. As Officer Henry proceeded toward 151st Street to investigate the source of the gunfire, he requested that dispatch notify the Westfield Police Department.

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shots may have been fired. Officer Henry proceeded up a gravel driveway to a one-story home with a large attached pole barn. The campfire was just north of the home beyond a small tree line. Officer Henry activated his police vehicle‟s rear deck red and blue emergency lights to alert the responding Westfield police officers. Officer Henry then exited his vehicle and approached an individual who was sitting in a lawn chair by the campfire.

The individual, identified as Barry Dircks, stood up as Officer Henry approached. Dircks informed Officer Henry that his cousin, Trotter, was inside the residence using the bathroom.

On a picnic table next to the campfire, Officer Henry observed a.45 caliber handgun, ammunition for that gun, as well as shotgun shell boxes. A gallon bottle of hard liquor was sitting on the picnic table, and Dircks was holding a plastic cup.

Officer Henry asked Dircks if he had been “shooting off any rounds,” and Dircks responded that he had not. Tr. at 15-16. Officer Henry assured Dircks, “I‟m not going to try to hem you up over this,” but informed him that the home was close to residential areas and that shooting off rounds was not safe. Tr. at 16. Dircks then apologized and explained that he and Trotter were just having some fun. Dircks showed Officer Henry two AR-15 magazines from another weapon he had been using. Officer Henry suggested that he and Dircks go talk to Trotter. As the pair was about to do so, additional Carmel and Westfield police officers arrived at the scene. Officer Henry explained the situation to the responding officers and turned over his investigation to Officer Broc Larrison and Officer Jeremy Butterfield of the Westfield Police Department.

–  –  –

Butterfield noticed shell casings on the ground and a propane tank that appeared to have recently been shot. The Westfield officers spoke to Dircks but believed that he may have been intoxicated and was behaving somewhat belligerent. The officers placed Dircks in handcuffs and began to look for Trotter. Officer Larrison checked doors on the east side of the residence and the pole barn and discovered that those entrances were locked. Officer Larrison also looked into the windows of a recreational vehicle on the property but determined that nobody was inside. Officer Larrison then discovered that a door on the southeast corner of the pole barn was unlocked. Officer Larrison informed Officer Butterfield that he had located an unlocked door, and the officers decided to go in.

Officer Butterfield opened the door and announced that they were officers with the Westfield Police Department. Although Officer Larrison testified that he knocked on the doors when he originally checked them, Officer Butterfield, who was the first to enter through the unlocked door, did not knock on the door prior to opening it. Once inside, the officers shined their flashlights around the dark pole barn. The officers heard a rustling sound and again announced that they were police officers. They heard no response.





However, after shining their flashlights in the direction of the noise, the officers observed Trotter approximately fifteen feet away from them standing behind some construction equipment with a rifle pointed at them. Trotter exclaimed something along the lines of, “You don‟t need to be here. Get out.” Id. at 43. The officers ran out of the pole barn. A standoff

–  –  –

the Noblesville Police Department. Trotter eventually surrendered.

The State charged Trotter with class D felony pointing a firearm and class D felony criminal recklessness. On June 19, 2009, Trotter filed a motion to suppress evidence arguing that the officers‟ warrantless entry into the private residence was unlawful pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Following an evidentiary hearing, the trial court granted Trotter‟s motion to suppress, excluding evidence obtained as a result of the police officers‟ observations upon unlawfully entering the private residence.1 On July 28, 2009, the State filed a motion to clarify requesting the court to reconsider its ruling. Thereafter, on July 31, 2009, the trial court reversed its prior order and denied Trotter‟s motion to suppress, permitting the admission of evidence of the police officers‟ observations. Specifically, although the trial court maintained its original conclusion that the warrantless entry into the residence was unconstitutional, the trial court determined that suppression of the evidence was not necessary based upon the doctrine of attenuation. Upon Trotter‟s request, the trial court certified the interlocutory order for appeal, and this Court accepted jurisdiction pursuant to Indiana Appellate Rule 14(B) on November 23, 2009.

1 We note that although Trotter did not own the residence, he was living in the residence, and the State concedes that he had a reasonable expectation of privacy in the premises. The trial court ruled that any evidence obtained from a subsequent search of the residence pursuant to a signed consent to search by the owner of the property, Kent J. Kirby, is admissible, and Trotter does not appeal that ruling. However, it appears that the only incriminating evidence obtained in this case was that evidence obtained upon initial entry into the home, which was the officers‟ observations of Trotter‟s alleged behavior resulting in charges of pointing a firearm and criminal recklessness.

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In ruling on Trotter‟s motion to suppress, the trial court concluded that the officers‟ warrantless entry indeed violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Upon the State‟s motion to clarify, the trial court decided that, despite the constitutional violations, evidence of the officers‟ observations would be admissible pursuant to the attenuation doctrine exception to the exclusionary rule. The State cross-appeals the trial court‟s initial determination that the entry was unlawful.

On appeal of the trial court‟s decision here, we are faced with two appellate standards of review. With regard to the trial court‟s denial of Trotter‟s motion to suppress, our review is somewhat similar to that used upon review of a claim of insufficient evidence; we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court‟s ruling. Crabtree v. State, 762 N.E.2d 241, 244 (Ind. Ct. App. 2002). However, unlike other sufficiency matters, we must also consider the uncontested evidence most favorable to the defendant. J.B. v. State, 868 N.E.2d 1197, 1200 (Ind. Ct. App. 2007), trans. denied. With regard to the constitutionality of the warrantless entry, because the State bore the burden of proof on that issue, the State appeals a negative judgment and must show that the trial court‟s determination was contrary to law. State v. Holley, 899 N.E.2d 31, 33 (Ind. Ct. App. 2008), trans. denied. We will reverse the trial court‟s decision only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court. Id.

Before we reach the trial court‟s ultimate determination that the evidence is admissible, we

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The fundamental purpose of the Fourth Amendment to the United States Constitution is to protect the legitimate expectations of privacy that citizens possess in their persons, their homes, and their belongings. Taylor v. State, 842 N.E.2d 327, 330 (Ind. 2006) (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). The principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment and, therefore, searches and seizures inside a home without a warrant are presumptively unreasonable. Alspach v. State, 755 N.E.2d 209, 212 (Ind. Ct. App. 2001), trans. denied.

The State bears the burden of proving that a warrantless search falls within an exception to the warrant requirement. Taylor, 842 N.E.2d at 330. Whether a particular warrantless search violates the guarantees of the Fourth Amendment depends on the facts and circumstances of each case. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).

The existence of exigent circumstances falls within an exception to the warrant requirement. Holder v. State, 847 N.E.2d 930, 936 (Ind. 2006). In other words, the warrant requirement becomes inapplicable when the „“exigencies of the situation‟ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Id. at 936-37 (quoting Mincey v. Arizona, 437 U.S. 385, 393-94 (1978)). Under the exigent circumstances exception, police may enter a residence without a

–  –  –

need of aid. Smock v. State, 766 N.E.2d 401, 404 (Ind. Ct. App. 2002). However, an officer‟s subjective belief that exigent circumstances exist is insufficient to justify a warrantless entry. Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2008) (citations omitted), trans. denied. Rather, the test is objective, and the government must establish that the circumstances as they appear at the moment of entry would lead a reasonable, experienced law enforcement officer to believe that someone inside the house required immediate assistance. Id. Moreover, “while exigent circumstances justify dispensing with a search warrant, they do not eliminate the need for probable cause.” Id. The probable cause element may be satisfied where the officers reasonably believe that a person is in danger. Id.

“The burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” McDermott v.

State, 877 N.E.2d 467, 474 (Ind. Ct. App. 2007), trans. denied.

Here, the State argues that officers were performing their “community-caretaker” function and entered the private residence to determine if Trotter had been injured or was in need of assistance. Appellee‟s Br. at 11-12. However, the record offers no support for the State‟s contention. Officers arrived on the scene to investigate what was at most an ordinance violation. Officers spoke with Dircks and were informed that a second individual, Trotter, was inside the house using the bathroom. At no time did the officers inquire about Trotter‟s well-being, nor did Dircks suggest that Trotter was injured or in need of aid.

Although Officer Butterfield testified that he was concerned that Trotter could be intoxicated

–  –  –

alcohol, much less evidence indicating that he was so heavily intoxicated that he needed immediate assistance. These police officers were not confronted with circumstances that would lead to a reasonable belief that Trotter was in need of emergency assistance.

The State emphasizes the scant evidence available to the officers that an unaccountedfor firearm remained on the premises. While perhaps indicating a possible unsafe situation, such evidence does not establish an exigency sufficient to justify a warrantless intrusion into a residence. We agree with the trial court that the evidence does not support a reasonable belief that Trotter was injured or in need of assistance at the time the officers entered the residence. The trial court properly determined that the officers‟ warrantless entry into the residence was neither justified by exigent circumstances nor supported by probable cause.

Accordingly, the officers‟ warrantless entry violated the Fourth Amendment.

–  –  –



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