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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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