COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA URSULSKIS STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
ALBERT HARDISTER, )
vs. ) No. 49A05-0310-CR-535
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael Jensen, Magistrate
Cause No. 49G20-0012-CF-221197
February 7, 2005
OPINION -FOR PUBLICATION
Albert Hardister was found guilty by a jury of dealing in cocaine and
possession of cocaine, both Class A felonies, possession of cocaine and a firearm,
a Class C felony, unlawful possession of a firearm by a serious violent
felon, a Class B felony, and obstruction of justice, a Class D felony.
The trial court sentenced Hardister to an aggregate of sixty-eight years.
Hardister now appeals his convictions and his sentence. We reverse.
Hardister raises five issues for our review. We find two issues dispositive
and restate them as follows:
Whether the trial court properly admitted evidence seized from the warrantless search of
the residence located at 407 North Hamilton Street; and
Whether the trial court properly denied Hardisters motion for judgment on the evidence.
Facts and Procedural History
On December 5, 2000, Indianapolis Police Officers Jack Tindall and Christopher Lawrence went
to the residence located at 407 North Hamilton Street
pursuant to an anonymous
report that someone was cooking drugs there. Officers Tindall and Lawrence did
not have a search warrant when they arrived at the residence. The
officers arrived after dark at approximately 8 p.m. Both officers went onto
the front porch of the residence, and Officer Tindall knocked on the front
door. After several seconds, the curtain of the window next to the
front door was pulled aside and a face peered out. Officer Tindall
later identified this person as Hardister due to his distinctive features.
Tindall announced that he was a police officer and shined his flashlight on
his badge. Hardisters face moved away from the window and a second
unidentified face peered out. The curtain was then replaced, and Officers Tindall
and Lawrence heard running feet. Through the window curtain, they saw
two silhouettes running towards the well-lit kitchen in the rear of the house.
In order to prevent anyone from escaping out the back door, both
officers ran to the rear of the residence by following a sidewalk located
on the north side of the building.
When the officers arrived at the back of the house they found no
one exiting the residence. Officer Lawrence then proceeded back to some windows
located on the north side of the house. These windows were partially
covered by newspaper. Officer Lawrence stepped off of the sidewalk and onto
the ground below the windows to peer inside the house through an uncovered
portion of one of the windows. He saw two to three men
huddled together, but did not see any drugs.
Officer Tindall remained in the rear of the house. He followed the
sidewalk to the back door of the residence that exited onto the back
porch. To the left of the back porch was an uncovered window.
In order to look into this window, Officer Tindall crossed over the
back porch and stood on the ground below the window. When Officer
Tindall looked into the window, he saw Hardister dumping a white, powdery substance
down the kitchen sink drain.
Officers Tindall and Lawrence then heard a commotion in the front of the
house. They both raced to the front of the building where they
saw three individuals exiting the house onto the roof through a window on
the second story. By this time other officers had arrived on the
scene. Two of the individuals, Thomas Kendall and Kyle Kendall, obeyed police
orders to stop and sat down on the roof. The third individual,
was the last person to come out of the window.
As he emerged on the roof he dropped several packages of a white
substance that appeared to be cocaine. Joshua Kendall attempted to flee by
jumping to the roof of the neighboring building. As he did so,
he dropped several more packages of cocaine. Recognizing that he had nowhere
to go, Joshua Kendall then jumped back onto the roof of 407 North
Hamilton Street, and dove back into the residence through the second story window
he had exited.
At this point, officers obtained permission from the owners of 405 North Hamilton
Street to enter their residence so that they could gain access to the
roof of the building. When the officers made it to the roof,
Thomas and Kyle Kendall were arrested. Two officers then entered the residence
by going through the open second story window. Once inside, the officers
discovered Fredrick Pace who was taken into custody. Officers later discovered Hardister
and Joshua Kendall in the attic of the residence and both were arrested.
At the time Hardister was arrested, no guns or drugs were found
on his person.
Each of the five arrested individuals was then taken to the first floor
of the residence where they were held until Detective Phillip Smiley arrived with
a search warrant. When the police searched the house, they discovered over
three hundred grams of cocaine. Cocaine was found in the basement, an
upstairs bedroom, and in the kitchen. Cocaine that Joshua Kendall had dropped
was also found on the roof of the building and directly in front
of the building. Some of the cocaine had been packaged for sale.
The police also found a scale. The police discovered a surveillance
system consisting of a camera trained on the back door, a video monitor,
and a yellow warning light that lit up whenever the doorbell was pushed.
Two loaded guns with extra ammunition were found. One of the
guns was in a cardboard box in the basement, while the second gun
was concealed behind a couch in the living room. The police also
found $1700 in a bathroom cabinet. Hardister was later charged with dealing
in cocaine and possession of cocaine, both Class A felonies, possession of cocaine
and a firearm, a Class C felony, unlawful possession of a firearm by
a serious violent felon, a Class B felony, and obstruction of justice, a
Class D felony.
Before trial, Hardister made a motion to suppress the evidence obtained from the
warrantless search of the residence. The trial court initially considered whether Hardister
had standing to make this motion. Hardister testified at a suppression hearing
that 407 North Hamilton Street was his permanent residence on December 5, 2000.
He stated that he, along with Joshua Kendall, had rented the house
with the help of a Michael D. Dile. Dile apparently signed the
lease for Hardister and Kendall, who in turn paid rent to Dile.
The trial court found that Hardister had standing, but denied his motion to
suppress. At trial, Hardisters counsel made a timely objection to the introduction
of the evidence seized from the search.
Hardister was tried with his co-defendants Joshua Kendall and Thomas Kendall.
See footnote See footnote
the presentation of its case, the State failed to introduce any evidence that
407 North Hamilton Street was Hardisters permanent residence on December 5, 2000.
After the State rested, Hardister moved for judgment on the evidence.
The trial court rejected this motion. The jury later found Hardister guilty
as to all counts. The trial court, after finding Hardisters extensive criminal
history to be an aggravating factor, sentenced Hardister to an aggregate of sixty-eight
years: fifty years for the dealing in cocaine conviction, eight years on
the possession of cocaine and a firearm conviction, fifteen years for the possession
of a firearm by a serious violent felon conviction, and three years for
the obstruction of justice conviction. The court entered no conviction or sentence
on the charge of possession of cocaine. The trial court determined that
Hardisters sentences for dealing in cocaine, possession of a firearm by a serious
violent felon, and obstruction of justice should run consecutively, while his possession of
cocaine and a firearm conviction was to run concurrently with his dealing in
cocaine conviction and possession of a firearm by a serious violent felon conviction.
This appeal ensued.
Discussion and Decision
I. Admission of Evidence from Warrantless Police Search
Hardister first contends that the trial court erred in admitting the testimony of
Officers Tindall and Lawrence regarding what each of the officers saw when they
peered into the windows of the residence because the officers actions constituted warrantless
searches in violation of the Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Indiana Constitution. We agree.
A. Standard of Review
Hardister argues that the trial court erred in denying his motion to suppress
any evidence obtained from the officers warrantless search of the residence located at
407 North Hamilton Street on December 5, 2000. Hardister did not seek
an interlocutory appeal after the denial of his motion to suppress, but instead
proceeded to trial where he made a contemporaneous objection to the admission of
the evidence obtained from the search. In this procedural posture, the issue
is more appropriately framed as whether the trial court abused its discretion by
admitting the evidence at trial. Washington v. State, 784 N.E.2d 584, 587
(Ind. Ct. App. 2003).
A trial court has broad discretion in ruling on the admissibility of evidence.
Id. We will only reverse a trial courts ruling on the
admissibility of evidence when the trial court has abused its discretion. Id.
A trial court abuses its discretion when it makes a decision that
is clearly against the logic and effect of the facts and circumstances before
the court. Id.
B. Officers View Through the Window
Hardisters principal contention is that the police violated the Fourth Amendment and Article
I, Section 11 of the Indiana Constitution when they looked in the windows
of the residence located at 407 North Hamilton Street. Hardister focuses on
the actions of Officers Tindall and Lawrence. He contends that the areas
under the respective windows where Officer Tindall and Officer Lawrence stood were within
the curtilage of the residence, and, thus, were protected areas under the Fourth
Amendment. Hardister concludes that each officers act of peering in through the
window amounted to a search under the Fourth Amendment, and, because it was
done without a warrant, violated the Fourth Amendment.
The Fourth Amendment to the United States Constitution guarantees [t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . . Federal Fourth Amendment law
protects citizens . . . from warrantless searches of places or items in
which the individual has an actual subjective expectation of privacy which society recognizes
as reasonable. VanWinkle v. State, 764 N.E.2d 258, 266 (Ind. Ct.
App. 2002), trans. denied. Historically, the curtilage of the home, the area
immediately surrounding the residence, has been considered within the purview of the Fourth
Amendment and protected from unreasonable searches and seizures. Rook v. State, 679
N.E.2d 997, 999 (Ind. Ct. App. 1997). We have also recently stated:
When police enter onto private property in order to conduct an investigation or
for another legitimate purpose and restrict their entry to places that other visitors
would be expected to go, such as walkways, driveways, or porches, any observation
made from these areas is permissible under the United States Constitution and the
Fourth Amendment thereto. Accordingly, an individual does not have a reasonable expectation
of privacy with regard to things or activities within a residence that may
be observed by persons using their natural senses from places impliedly open to
a visitor's entry. In general, this means that "if police utilize 'normal
means of access to and egress from the house' for some legitimate purpose,
such as to make inquiries of the occupant. . . it is not
a Fourth Amendment search for the police to see or hear or smell
from that vantage point what is happening inside the dwelling.
Divello v. State, 782 N.E.2d 433, 437 (Ind. Ct. App. 2003), trans. denied
(internal citations omitted).
Divello is very similar to this case. In Divello, police went to
the defendants house to investigate an anonymous tip that the defendant was selling
marijuana out of his residence. The officers did not have a search
warrant. Upon arriving at the defendants home, the officers first knocked on
the back door. A porch was located at this entrance, and a
sidewalk led from the street to this porch. When the officers received
no answer at the back door, they knocked on the front door, but
no one answered there either. The anonymous tip had informed the officers
that the defendant owned a second home just south of the first home,
so the officers went to the defendants second residence to see if anyone
To gain access to the adjacent property, the officers walked through the backyard
of the first residence and then through an open gate in a privacy
fence. One of the officers walked up the driveway and knocked on
the front door but again received no answer. The officers then noticed
a truck in the back of the second residence that was parked partly
on the driveway and partly in the grass. Two of the officers
returned to their vehicle to run the license plate number on the truck
to ascertain who owned it. A third officer remained with the truck.
This officer walked around the truck, so that he was between the
truck and the house, in order to look underneath the truck. While
this officer was between the truck and the house, he smelled the odor
of marijuana coming from the house. When the other two officers returned
to the third officers position they also smelled marijuana. One of the
officers stated that he had to get eighteen inches away from the house
before he could smell the marijuana.
The officers then left the defendants residence, and, based on the marijuana odor,
were able to get a search warrant. The defendants home was searched
and marijuana was discovered. The defendant was charged with dealing in and
possession of marijuana. He filed a motion to suppress the evidence obtained
pursuant to the search warrant, arguing that the officers entry onto and search
of his property violated the Fourth Amendment. The trial court denied the
defendants motion to suppress.
We initially noted that the officers entry onto the property of the defendants
first residence did not violate the Fourth Amendment because the police were there
to investigate an anonymous tip, which is legitimate police business. Id. at
438. We elaborated that although the anonymous tip suggested illegal activity it,
did not rise to the level necessary to justify anything more than a
visit along the most obvious and direct route to the front door of
each residence. Id. We concluded that the officers should not have
crossed through the backyard of the first residence and then through the open
privacy gate to the second residence because this area cannot be regarded as
one through which uninvited visitors would be expected to travel under the circumstances.
Id. We indicated that after the defendant did not answer the
door at his first residence, the officers, having no information justifying further intrusion,
should have proceeded along the most direct public way from the [first] residence
to the front door of [defendants] [second] property. Id. at 438-39.
When the officers received no answer at the second residence, they should have
left the defendants property because the purpose for their visit terminated due to
lack of response from any occupant. Id. at 439. We concluded
that at that point no other part of the [second residence] was properly
subject to the officers observation. Id.
We last turned to the officers observation of the odor of marijuana.
We found that this observation was constitutionally impermissible for two reasons:
First, after there was no response from any occupant of the [second] property,
they were no longer there for a legitimate investigatory purpose and should have
left. Second, when Deputy Rosenbarger walked around the truck and within four
feet of the house, he was clearly no longer in a place where
visitors could be expected to go; he had invaded the curtilage of Divello's
property. Divello had a reasonable expectation of privacy in this area, and
therefore, Deputy Rosenbarger's actions violated the Fourth Amendment.
Id. (internal citations omitted). We ultimately held that the officers observation of
the odor of marijuana was obtained as a result of an unconstitutional search
under the Fourth Amendment, and that all evidence obtained from that search must
be suppressed. Id.
Here, Officers Tindall and Lawrence went to 407 North Hamilton Street to investigate
an anonymous tip. The investigation of an anonymous tip is legitimate police
activity. Id. at 437-38. Thus, legitimate police business brought Officers Tindall
and Lawrence to 407 North Hamilton Street, and justified their entry onto the
property to effectuate that business.
The officers went onto the porch of the residence and knocked on the
front door. The curtain of the window next to the front door
was pulled aside and Hardister peered out. Officer Tindall announced that he
was a police officer and illuminated his badge. Hardister moved away from
the window and a second person peered out. The curtain was dropped,
and the officers heard running feet and saw two silhouettes running towards the
well-lit kitchen in the rear of the house. We would first note
that the occupants of the residence had a right to refuse to answer
their door when Officer Tindall knocked upon it. See Cox v. State,
696 N.E.2d 853, 858 (Ind. 1998) (citing U.S. v. Berkowitz, 927 F.2d 1376,
1387 (7th Cir. 1991)). The failure of the occupants of the residence
to answer the door did not give the officers probable cause to search
the property. Likewise, hearing running feet and seeing two silhouettes running towards
the rear of the house did not provide the officers with probable cause
to search the residence. When the officers received no answer to their
knock on the front door, they should have left the property because the
purpose of their visit terminated due to a lack of response from any
occupant of the residence.
However, rather than leaving the property, Officers Tindall and Lawrence ran to the
rear of the house in order to catch anyone trying to flee out
the back door. When no one exited the house, the officers split
up. Officer Lawrence positioned himself on the ground beneath some windows on
the north side of the home, while Officer Tindall stood on the ground
below the window in the rear of the residence. At that point,
both officers had left areas where visitors would normally be expected to go,
entered onto the curtilage of the property, and peered into the residence through
windows. Officer Lawrence saw a group of two or three African-American males
standing together, but saw no drugs or guns. Officer Tindall saw Hardister
dumping a white, powdery substance down the kitchen sink drain.
Even if we assume that it was permissible for the officers to go
to the back door of the residence, we hold that Officer Tindalls and
Officer Lawrences observations through the windows of the residence were constitutionally impermissible for
the same reasons cited in Divello. First, when the officers received no
response from their knock on the front door of the residence, they were
no longer on the property for a legitimate investigatory purpose and should have
left. Second, when Officer Tindall and Officer Lawrence stood on the ground
underneath the windows of the residence that they ultimately peered into, they were
no longer in a place where visitors would be expected to go, and
had invaded the curtilage of the property. Hardister had a reasonable expectation
of privacy in the area constituting the curtilage of the home, and, thus,
Officer Tindalls and Officer Lawrences actions violated the Fourth Amendment.
The State argues that pursuant to Sayre v. State, 471 N.E.2d 708
(Ind. Ct. App. 1984), trans denied, cert denied, 475 U.S. 1027 (1986), Officer
Tindalls and Officer Lawrences actions did not violate the Fourth Amendment. In
Sayre, two police officers went to the defendants home to question her about
a theft. When the officers arrived at the defendants home it was
dark, the defendant had her front window uncovered, and lights were on in
the kitchen. One of the officers, while standing on the front porch
of the residence, knocked on the front door. The second officer stood
several feet behind the first officer in the front yard of the residence.
The second officer was able to see inside the residence through the
uncovered front window. When the first officer announced that it was the
police, both officers heard a woman shout Police! The second officer then
saw a woman run from the front door and several people at a
kitchen table with drug paraphernalia move rapidly away. The officers entered the
defendants home and arrested those present.
The defendant argued that she had a reasonable expectation of privacy not to
be viewed through her front window, and that the second officers view into
the window from the front yard constituted an unconstitutional search because the officer
was trespassing or in a place he had no right to be .
. . . Id. at 713. We noted that the Seventh
Circuit Court of Appeals had previously dealt with this issue and stated, the
question is not whether a trespass has occurred but whether the police officers
actions were reasonable under the circumstances. Id. (citing United States v.
Conner, 478 F.2d 1320 (7th Cir. 1973)). In both Conner and United
States v. Hanahan, 442 F.2d 649, 654 (7th Cir. 1971), the Seventh Circuit
held that technical trespasses committed by police officers engaged in a legitimate investigation
did not give rise to a Fourth Amendment violation. We held that
the officers view through the front window, even though he was committing a
technical trespass by standing on the defendants front lawn, did not violate the
Fourth Amendment because the officers action was part of a reasonable investigation under
the circumstances. Sayre, 471 N.E.2d at 713.
We find Sayre distinguishable. In Sayre, when the second officer entered onto
the curtilage of the property and peered into the defendants home, he was
still engaged in a legitimate investigation. Here, when Officer Tindall and Officer
Lawrence received no answer to their knock on the front door, their purpose
for visiting the property terminated. Thus, when they later looked through the
windows of the residence, they were no longer on the property for a
legitimate investigatory purpose. Officer Tindalls and Officer Lawrences observations through the windows
of the residence were unconstitutional searches under the Fourth Amendment. Evidence found
as a result of an unconstitutional search under the Fourth Amendment must be
suppressed. Divello, 782 N.E.2d at 439. The trial court erred in
admitting testimony from the officers regarding their observations through the windows.
II. Sufficiency of the Evidence
Hardister argues that the trial court erred in denying his motion for judgment
on the evidence because there was insufficient evidence to support each of his
convictions. We agree.
A. Standard of Review
Our standard of review for the denial of a motion for judgment on
the evidence is the same as that for a challenge to the sufficiency
of the evidence. Hornback v. State, 693 N.E.2d 81, 84 (Ind. Ct.
App. 1998). On a claim that the evidence is insufficient to support
a jurys verdict, we neither weigh the evidence nor judge the credibility of
witnesses. Id. We consider only the evidence favorable to the jurys
verdict, along with all reasonable inferences that can be drawn therefrom. Id.
We will affirm the conclusion of the jury if there is substantial
evidence of probative value to support their determination. Id.
B. Insufficient Evidence to Support Hardisters Convictions
Hardister contends that the State presented insufficient evidence to support his convictions for
dealing in cocaine, possession of cocaine and a firearm, unlawful possession of a
firearm by a serious violent felon, and obstruction of justice. To avoid
judgment on the evidence, the State need only present a prima facie case.
Jones v. State, 697 N.E.2d 57, 59 (Ind. 1998). In order
to make a prima facie case of Class A felony dealing in cocaine,
the State must prove that Hardister possessed with the intent to deliver cocaine
in an amount in excess of three grams. Ind. Code § 35-48-4-1(a)(2)(C),
(b)(1). A prima facie case of possession of cocaine and a firearm
is made when the State proves that Hardister knowingly or intentionally possessed cocaine
and a firearm. Ind. Code § 35-48-4-6(a), (b)(1)(B). To establish a
prima facie case of unlawful possession of a firearm by a serious violent
felon, the State was required to prove that Hardister was a serious violent
felon who knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5(c).
To make a prima facie case of obstruction of justice, the State
was required to prove that Hardister altered, damaged, or removed any record, document,
or thing, with the intent to prevent it from being produced or used
as evidence in any official proceeding or investigation. Ind. Code § 35-44-3-4(a)(3).
Hardister argues that the State presented insufficient evidence to establish that he possessed
any of the drugs or guns found at 407 North Hamilton Street.
A conviction for possession of contraband may rest upon proof of either actual
or constructive possession. Goffinet v. State, 775 N.E.2d 1227, 1230 (Ind. Ct.
App. 2002), trans. denied, (quoting Tardy v. State, 728 N.E.2d 904, 908 (Ind.
Ct. App. 2000)). An individual has actual possession of an item when
he or she has direct physical control over the item. Id.
Because Hardister did not have possession of any drugs or guns when he
was arrested, the State was required to establish that Hardister constructively possessed these
To prove constructive possession, the State must show that Hardister had (1) the
intent to maintain dominion and control over the contraband and (2) the capability
to maintain dominion and control over the contraband. Ladd v. State, 710
N.E.2d 188, 190 (Ind. Ct. App. 1999). To prove the intent element:
the State must demonstrate the defendants knowledge of the presence of the contraband.
This knowledge may be inferred from either the exclusive dominion and control
over the premises containing the contraband or, if the control is non-exclusive, evidence
of additional circumstances pointing to the defendants knowledge of the presence of the
Conrad v. State, 747 N.E.2d 575, 582 (Ind. Ct. App. 2001), trans. denied
(internal citations omitted). These additional circumstances have been found to include:Conclusion
(1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3)
a drug manufacturing setting; (4) proximity of the defendant to the drugs; (5)
drugs in plain view; and (6) location of the drugs in close proximity
to items owned by the defendant.
Ladd, 710 N.E.2d at 190. To establish the second element of constructive
possession, the evidence must demonstrate the capability to exercise control over the item,
that is, the ability to reduce the item to his personal possession or
to otherwise direct its disposition or use. Conrad, 747 N.E.2d at 582.
The State has failed to present sufficient evidence that Hardister constructively possessed any
of the drugs found in the residence. The States case largely relied
upon Officers Tindalls testimony that he saw Hardister dumping a white, powdery substance
down the kitchen sink drain. However, we have concluded that this evidence
was obtained in violation of the Fourth Amendment and should not have been
admitted. Excluding Officer Tindalls testimony, the State has failed to produce any
evidence showing that Hardister had knowledge of the presence of the drugs, or
that he had exclusive control over the premises. Although the State has
shown that Hardister was present in a place where drugs were found, [m]ere
presence where drugs are located or association with persons who possess drugs is
not alone sufficient to support a finding of constructive possession. Godar v.
State, 643 N.E.2d 12, 15 (Ind. Ct. App. 1994), trans. denied. The
State failed to present sufficient evidence to sustain Hardisters convictions for dealing cocaine
and possession of cocaine. Additionally, without Officer Tindalls testimony, the State presented
no evidence that shows that Hardister attempted to destroy the drugs in the
residence. Thus, the State has not presented sufficient evidence to support Hardisters
conviction for obstruction of justice.
We also hold that the State failed to present sufficient evidence that Hardister
constructively possessed the guns found in the residence. When Hardister was arrested,
no guns were found on his person. Of the two guns found
in the house, one was hidden in a box in the basement and
the other was stowed behind the couch in the living room. Because
both of the guns were concealed, Hardister contends that he had no knowledge
of their presence in the house. He also asserts that he was
not capable of exercising control over the guns because he was not in
any location where the weapons were found. The State argues that [t]he presence
of the handguns, in a house to which Defendant clearly had full access,
and the demonstration of control over the objects in the house, shown by
the attempt to destroy cocaine, allows the inference of constructive possession. Appellees
Brief at 11. We hold that the State failed to demonstrate that
Hardister knew of the presence of the guns in the house, and also
failed to prove that Hardister had exclusive control over the premises or any
other circumstances from which Hardisters knowledge of the presence of the guns could
be inferred. We also agree with Hardister that the State has not
proven that Hardister could have exercised control over the guns, as it has
presented no evidence that would place Hardister in any of the rooms where
the guns were located. The State then did not produce sufficient evidence
to support Hardisters convictions for possession of cocaine and a firearm, and possession
of a firearm by a serious violent felon.
Based on the foregoing, we conclude that the State has failed to present
sufficient evidence to sustain each of Hardisters convictions.
We hold that the trial court erred in admitting Officer Tindalls and Officer
Lawrences testimony regarding what they saw when they looked into the windows of
the residence because their observations were obtained as a result of unconstitutional searches
under Fourth Amendment, and all evidence derived from those searches should have been
excluded. We further hold that the State failed to present sufficient evidence
to support Hardisters convictions for dealing cocaine, possession of cocaine and a firearm,
possession of a firearm by a serious violent felon, and obstruction of justice.
Each of Hardisters convictions is therefore reversed.
KIRSCH, C.J., and BAKER, J., concur.
Oral argument was heard in this case on October 19, 2004, at
Creekside Middle School in Carmel, Indiana. We thank the staff and students
for their hospitality.
407 North Hamilton Street is actually a duplex residence. Half of
the building is designated as 407 North Hamilton Street, while the other half
is designated 405 North Hamilton Street.
Hardister is a fair-skinned African-American male with freckles on his face.
Joshua Kendall, Kyle Kendall, and Thomas Kendall are brothers.
Kyle Kendall was a minor at the time and Fredrick Pace was
We would note that Joshua Kendalls appeal is still pending before another
panel of this court.
Thus far, our analysis has focused on the officers actions in relation
to the Fourth Amendment of the United States Constitution. We also find
that the officers actions violated the Indiana Constitution. Our analysis under Article
I, section 11 of the Indiana Constitution turns to the specific facts of
each case and whether police conduct is reasonable in light of the totality
of the circumstances. VanWinkle, 764 N.E.2d at 266. Officer Tindalls and
Officer Lawrences actions were not reasonable. When the officers received no answer
to their knock on the front door, their purpose for being on the
property terminated and they should have left the property. Furthermore, it was
not reasonable for the officers to leave the areas where visitors would be
expected to go, enter onto the curtilage of the property, and peer into