Delinquent findings against twins affirmed under ‘new-crime’ rule

September 8, 2017

Two teenage brothers who each attacked police officers trying to conduct pat-down searches were properly found to be delinquent for their acts under the new-crime exception to the exclusionary rule, the Indiana Court of Appeals ruled Friday.

While on duty at Arsenal Tech High School, Indianapolis Public Schools Police Department officers John Dunker and Christopher Caldwell received a call about a student’s phone being stolen from a classroom. The officers went to the classroom and conducted pat-down searches of each of the students, but one student, Ki.C., refused to comply.

After Dunker put his hand on Ki.C.’s shoulder, Ki.C. threw his arm back in an aggressive manner and punch the officer with both his fist and a trophy. Dunker then put Ki.C. on the ground while Caldwell prevented Ke.C., Ki.C.’s twin, from moving toward the scene. Ke.C., however, did try to intervene, so Caldwell took him to the ground.

After the brothers were escorted away from the scene, the state made allegations of delinquent acts against Ki.C. that, if committed by an adult, would be considered battery against a public safety official, battery by bodily waste and intimidation, all as Level 6 felonies, and resisting law enforcement as a Class A misdemeanor. For his part, Ke.C. was alleged to be a delinquent for two counts of resisting law enforcement, Class A misdemeanors if committed by an adult.

During a consolidated fact-finding hearing, defense counsel made an oral motion to suppress evidence of the events after the attempted pat-down search and also to suppress Dunker’s testimony on the basis that Dunker had violated the defendants’ constitutional rights. The Marion Superior Court denied that motion and a similar objection to Caldwell’s testimony. The trial court then admitted into evidence the myIPS Student Code of Conduct, which addressed personal technology devices such as smartphones and student searches.

True findings were then entered against Ki.C. for acts that would be Level 6 felony battery on a public safety official and Class A misdemeanor resisting law enforcement and against Ke.C. for Class A misdemeanor resisting law enforcement. The brothers appealed in K.C. & K.C. v. State of Indiana, 49A04-1606-JV-1230, arguing error in the admission of certain evidence due to violations of their rights under Article 1, Section 11 of the Indiana Constitution.

After determining the brothers had preserved their arguments for appeal through their objections to the officers’ testimony, the Indiana Court of Appeals affirmed the true findings against them Friday. Specifically, Judge Elaine Brown wrote that even if the search of the brothers was not reasonable, the evidence was properly admitted under the new-crime exception to the exclusionary rule, as laid out in C.P. v. State, 39 N.E.3d 1174 (Ind. Ct. App. 2015).

In that case, the appellate court determined that when a suspect physically attacks an officer in response to an unconstitutional search or seizure, evidence of the “new crime” is admissible under the Fourth Amendment.

“The Court observed that… ‘the rationale that the other federal and state courts have cited in applying the new-crime exception to the Fourth Amendment’s exclusionary rule is equally applicable to the Indiana Constitution’…,” Brown said. “…In this case, we conclude that the Respondents’ actions, which included violence against officers, constituted new and distinct crimes and thus that the evidence of those crimes is admissible pursuant to the new-crimes exception notwithstanding any illegality of the pat-down search.”



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