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Justices consider ‘reasonable’ standard in flash bang search case

May 26, 2017

As criticism across the country continues to grow against the use of flash bang devices, a highly controversial police diversionary tool, the justices of the Indiana Supreme Court must decide whether the use of such a tool in Evansville constituted an unreasonable assault on the home.

In the case of Mario Watkins v. State of Indiana, 82S01-1704-CR-00191, argued before the high court Thursday, the Vanderburgh Circuit Court issued a search warrant for Mario Watkins’ home after Evansville police received a tip about narcotics and a weapon in a home where Watkins had been seen. When a SWAT team arrived at the residence, officers used a battering ram to break down the door and rolled a flash bang device, which emits a bright flash and loud bang, into a room where a 9-month-old baby was located, unbeknownst to officers.

After removing the baby from the home, officers entered, found the narcotics and gun and detained Watkins. Despite the Vanderburgh Superior Court’s initial denial of Watkins’ motion to suppress the evidence, a divided Indiana Court of Appeals ruled in January the evidence found in the home must be suppressed because the “military-style assault” was unreasonable.

Matthew McGovern, counsel for Watkins, presented a similar argument before the high court Thursday, telling the justices under Article 1 Section 11 of the Indiana Constitution, the method of the search on Watkins’ home was unreasonable. McGovern urged the court to adopt a test in which the use of flash bang devices would be held to a reasonableness standard, and if the state cannot prove under the totality of the circumstances that the use of such a device was reasonable, any evidence collected pursuant to use of a flash bang must be suppressed.

McGovern further pointed to a string of 7th Circuit Court of Appeals cases in which the court questioned the use of flash bangs, but Justice Mark Massa noted those cases had been suits for civil damages, not suppression. McGovern agreed but said those cases had been heard under Fourth Amendment arguments, which focus on probable cause and search warrants. The reasonableness argument can only be considered under the state constitution, the attorney said, giving Indiana the unique opportunity to develop a test like the one he suggested.

However, Deputy Attorney General James Martin told the court from the state’s perspective, the tactics the officers used in their search where employed to preserve officer safety and, thus, were reasonable under the totality of the circumstances. Watkins was thought to be a dangerous criminal, Martin said, so the Evansville SWAT team took the steps it thought were necessary to ensure officers were not unnecessarily harmed during the search.

Martin then echoed Massa’s earlier point that claims of excessive force are generally redressed through civil litigation, not requests for suppression. But Chief Justice Loretta Rush noted under a Litchfield v. State, 824 N.E. 2d 356, 361 (Ind. 2005), analysis, courts are required to examine the degree of police intrusion, which is a central issue in Watkins’ case.

While such a test is required under Litchfield, Martin said the Litchfield factors are “substantially subsumed” in this case by the search warrant, which he said was properly executed. But faced with a question on a similar issue, McGovern said the question of the search warrant’s execution was not the dispositive question in the case.

Instead, McGovern repeatedly said the case should be examined for Article 1 Section 11 reasonableness under a totality of the circumstances test. From his perspective, such a test would show Evansville police used unreasonable force to gain access to Watkins’ home.

But even if the search did constitute a violation of Watkins’ constitutional rights, Martin said such a violation should not lead to the use of the exclusionary rule because the officers’ methods did not expand the scope of the valid warrant.

Oral arguments in the case can be viewed here.

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