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Justices to hear cases involving protective sweeps, proceedings supplemental

May 22, 2017

The Indiana Supreme Court has agreed to decide if Lafayette police officers acted improperly when they searched a man’s apartment and arrested him after finding a gun in his back bedroom.

The high court granted transfer last week to the case of Ricky L. Johnson v. State of Indiana, 79S04-1705-CR-332, in which Ricky Johnson was convicted of possession of a firearm by a serious violent felon. Johnson’s conviction came after his girlfriend, Dymsia Joe, told police he had threated to shoot and kill her, prompting Lafayette police officers to conduct a protective sweep of his apartment.

The protective sweep yielded the discovery of a gun in the back bedroom, which led to Johnson’s conviction, despite inconsistencies in Joe’s testimony. But the Indiana Court of Appeals reversed the conviction in February, finding the sweep was improper because the bedroom where the gun was found was not “a space immediately adjoining the place of arrest.”

The court also granted transfer last week to Dennis Garner v. Gregory Stewart Kempf, et al., 82S01-1705-PL-334. In that case, a divided Indiana Court of Appeals reversed the denial of a motion for proceedings supplemental in a civil case, finding it was incumbent upon the county clerk, not the litigant, to ensure the criminal court knew of a lien against criminal bond proceeds.

Specifically, the majority of the appellate panel found in January the Vanderburgh Superior Court had erroneously determined Dennis Garner was responsible for ensuring an entry of a lien against criminal bond proceeds was made on the CCS in a criminal case against Gregory Kempf. Judge Rudolph Pyle dissented.

Indiana’s high court denied transfer to 39 other cases last week, including an Indiana Tax Court case, Monroe County Assessor v. SCP 2007-C-26-002, LLC, a/k/a CVS 3195-02, 49T10-1509-TA-29.

That case, which was decided in November, gave victory to a CVS store in Bloomington against what it said were inaccurate tax assessments. Tax Court Judge Martha Blood Wentworth agreed the assessments were inaccurate and rejected the argument her previous decisions in similar cases had been wrongly decided. Chief Justice Loretta Rush and Justice Steven David voted to grant review of the case, while Justices Mark Massa and Geoffrey Slaughter voted to deny review.

The court also denied transfer to Harrison County Sheriff’s Department v. Leandra Ayers, 22A01-1605-CT-01080, in which the Indiana Court of Appeals ruled the Harrison County Sheriff’s Department could not be held liable for the death of the wife of one if its former deputies, who used her husband’s work gun to kill herself. The appellate court held in a January opinion the deputy was acting as a husband, not a law enforcement officer, during the incident that led to his wife’s death.

The full list of transfer decisions can be read here.

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