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Judges disagree in police entry case

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An Indiana Court of Appeals judge dissented from his colleagues' decision denying a man's motion to suppress evidence because he didn't believe the police officers were justified in kicking down the man's door and entering his apartment.

In his dissent in Luis E. Duran v. State of Indiana,  No. 45A03-0811-CR-569, Judge Carr Darden cited the fact the police were trying to serve a routine arrest warrant for Nelson Hernandez for a charge of auto theft and the officers' testimony about how they came to Luis Duran's apartment instead and their actions inside as reasons for why he would grant Duran's motion to suppress evidence.

A bystander in an apartment complex told police that Hernandez lived on the second floor of the building and had a green door. That apartment actually belonged to Duran; Hernandez was staying in a different apartment on the second floor. Police knew Hernandez had been recently injured and on crutches.

The police knocked on the green-door apartment, to which Duran responded, "Hold on a minute" after police identified themselves. After hearing some rustling and then silence, the police kicked down the door and found Duran alone in the apartment with a bag of cocaine on the window sill. He was charged with Class A felony dealing in cocaine and Class C felony possession of cocaine; the trial court denied his motion to suppress.

Duran argued on appeal the entry into his apartment violated the Fourth Amendment and Article I, Section 11 of the Indiana Constitution.

The majority examined caselaw, including Payton v. New York, 445 U.S. 573, 576 (1980), and Steagald v. United States, 451 U.S. 204, 212, 215-16 (1981), and the Circuit courts' interpretations of the holdings to conclude that the police needed reasonable belief that Hernandez resided at the green-door apartment and that Hernandez was at the apartment at the time of entry.

The majority found the officers' reliance on the testimony from the bystander to be reasonable because one of the officers could corroborate part of the bystander's story, the green door was important because the apartment lacked identifying numbers or mailboxes, and the man didn't want to be identified because he didn't want to be "in trouble with" Hernandez. The officers also believed Hernandez to be in the apartment because they knew he was immobile because of an injury and the long delay in answering the door.

Judges Margret Robb and L. Mark Bailey ruled the officers didn't violate Duran's Fourth Amendment rights or his rights under Article I, Section 11 because the Litchfield factors, in their totality, favor a finding the officers' conduct was reasonable.

Judge Darden relied heavily on the conflicting testimony of the arresting officers surrounding the entry of the apartment for why he would grant the motion to suppress.

"I appreciate the majority's careful attention to precedent in reaching the result it has. However, I am deeply troubled by testimony indicating that police officers believe that when the resident of a dwelling does not open a door, after having simply heard the announcement that 'police' are outside, the officers may kick in that door to gain entry," he wrote.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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