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Court of Appeals reverses felony possession of handgun conviction

February 28, 2017

The Indiana Court of Appeals has reversed a man’s felony firearm conviction after finding that a protective sweep performed in his apartment after his arrest was improper.

In Ricky Johnson v. State of Indiana, 79A04-1601-CR-165, Lafayette police officers were dispatched to Ricky Johnson’s home after his girlfriend, Dymsia Joe, reported that he had threatened to shoot and kill her. After Johnson was apprehended, the police conducted a protective sweep of the apartment and found a handgun in a back bedroom.

Johnson was charged with possession of a firearm by a serious violent felon, criminal reckless and intimidation, though the latter two charges were eventually dropped.  Johnson moved to suppress the gun evidence, alleging that the protective sweep violated his state and federal constitutional rights. The court denied the motion to suppress the gun, but granted it as it related to a box of ammunition also found in the apartment.

However, during trial, Joe testified that she had lied to police about Johnson holding the gun to her head. She also testified that the gun was usually kept alone in a shoebox, although police photos showed ammunition in the box and the gun had been found on a bed. The photo of the box was admitted into evidence and Johnson was found guilty as charged.

The Indiana Court of Appeals on Tuesday reversed Johnson’s conviction, holding that the bedroom where the gun was found was not “a space immediately adjoining the place of arrest in the hallway of the apartment building from which an attack could immediately be launched,” as is required for protective sweeps, Judge Elaine Brown wrote. Instead, the bedroom was a back bedroom that could only be reached by opening another door, so the gun was not immediately visible.

Further, because Johnson had already been arrested, the door to the apartment was closed and locked and because no one made any noise inside the home when officers identified themselves, Brown wrote that there was no reason for the officers to believe there was any threat of danger to their safety or to the safety of others. Thus, the protective sweep was improper.
 

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