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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. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  2. Tina has left the building.

  3. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Can’t we lawyers just engage in peer professionalism and even peer pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basic respect for the law shown by most social workers .... it that good enough in Indiana? If not, then how is JLAP to help this 2003 law school grad get what her law school evidently failed to teach her? (In addition .... rhetorical question … I have a theory that the LAP model serves as a conduit for governmental grace when the same strict application of the law visited upon the poor and the powerless just will not do. See in the records of this paper ... can the argument be made that many who save their licenses, reputations, salaries by calling upon that font of grace are receiving special treatment? Who tracks the application of said grace to assure that EP and DP standards are fully realized? Does the higher one climbs inside the Beltway bring greater showers of grace? Should such grace be the providence of the government, or the churches and NGO's? Why, we would not want to be found mixing the remnants of our abandoned faith with the highest loyalty to the secularist state, now would we?)

  4. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Cannot we lawyers not engage in peer professionalism and even pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basis respect for the law shown by most social workers .... it that good enough in Indiana?

  5. Judge Baker nails it: "Russell was in a place he did not have a right to be, to take an action he did not have a right to take. Russell neglected to leave that property even after engaging in a heated argument with and being struck with a broom handle by the property owner." AS is noted below ... sad to think that the next shoe to drop will be the thief suing the car owner. That is justice?

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