ATTORNEYS FOR APPELLANT : ATTORNEY FOR APPELLEE:
KAREN FREEMAN-WILSON ELLEN M. OCONNOR
Attorney General of Indiana Indianapolis, Indiana
Deputy Attorney General
STATE OF INDIANA, ) ) Appellant-Plaintiff, ) ) vs. ) No. 49A05-0009-CR-371 ) SAMUEL L. ESTEP, ) ) Appellee-Defendant. )
Suppression of Evidence Obtained Inside the Residence
In summary, the State argues that the trial courts ruling on the Motion to Suppress was contrary to law. It urges that the officers properly entered Esteps house to make the arrest and that the officers saw in plain view the evidence upon which the search warrant was based after their entry into the residence. Conversely, Estep argues that the officers did not lawfully enter his home and that therefore the plain view exception to the requirement of a search warrant does not apply in this case. Alternatively, he argues that even if the officers did have a right to enter his home to arrest him, the officers exceeded their limited right to enter and search for persons under the protective sweep doctrine, and therefore the evidence was properly suppressed.
Estep contends that the officers should have pulled him outside the front door and closed the door behind him without conducting a protective sweep of the residence prior to arresting him. Sergeant Brad Shoemaker testified that the officers could have arrested Estep outside his residence:
Q: Okay. So he opened the door, youve got you and another officer on the porch, and you have other officers around, so you could have had him come up on, come out on the porch, handcuffed him, and taken him away.
A. We could have done that? I suppose we could have done that, yes.
(R. at 154.) The State argues the officers properly entered Esteps residence
to make the arrest, citing Maryland v. Buie, 494 U.S. 325, 330 (1990):
If there is sufficient evidence of a citizens participation in a felony
to persuade a judicial officer that his arrest is justified, it is constitutionally
reasonable to require him to open his doors to the officers of the
Clearly, law enforcement officers have a right to enter a suspects home with an arrest warrant if he is attempting to hide from law enforcement in his home: [F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Payton v. New York, 445 U.S. 573, 603 (1980). Additionally, Ind. Code § 35-33-2-3(b) provides that [a] law enforcement officer may break open any outer or inner door or window in order to execute an arrest warrant, if he is not admitted following an announcement of his authority and purpose. (Emphasis added.) We find that the existence of a valid arrest warrant for Estep combined with the holdings in Buie and Payton provide sufficient justification for the officers entry to arrest Estep. However, we are not satisfied that the officers actions after entry were equally justified, when they not only entered but remained after completing the arrest, and thus placed themselves in a position to conduct a protective sweep and see the items of contraband they seized.
Our supreme court has previously recited the circumstances under which a protective sweep may take place:
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene . . . We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
Smith v. State, 565 N.E.2d 1059, 1061-2 (Ind. 1991) (overruled on other grounds by Albaugh v. State, 721 N.E.2d 1233, 1235 (Ind. 1999)), quoting Buie, 494 U.S. at 334-5. Thus, a protective sweep is authorized under Buie either of rooms immediately adjoining the place of the arrest (without need for officer suspicion), or of areas that might, given facts articulable by the searching officer, contain a hiding person who might jeopardize officers safety. These two prongs of the Buie holding are considered in reverse order in the following paragraphs.
The State does not make an argument under either prong of Buie other than to cite the case generally as authority for the proposition that police could enter Esteps residence. Nor does the State address the scope of the protective sweep. Instead, the State simply argues that once officers were properly inside the residence, they could seize contraband under the plain view doctrine.
Estep argues generally under Buie that the police did not cite articulable facts justifying a sweep. Although Estep does not explicitly phrase it as such, this statement could be viewed as an argument under the second prong of Buie. To illustrate the lack of articulable facts regarding the need for a protective sweep of the entire home, Estep quotes Sergeant Shoemakers testimony regarding the search of the home: Well, because when we search a house with a known felon in the house that we have a warrant for, ideally they run with other felons, and they conceal weapons as well as narcotics and could be a threat or danger to the officers within the residence. (Br. of Appellee at 10, citing R. at 157.)
Our supreme court has previously considered what qualifies as specific, articulable facts justifying a sweep under the second prong of Buie. In Smith, the supreme court ruled that officers search of a locked storage room (and subsequent seizure of marijuana found in the storage room) was not justified under either prong of Buie. Officers came into the Smith residence with an arrest warrant for Tammy Smith but no search warrant for the home. An officer testified at trial regarding the entry into the locked storage room:
Q. So when you were confronted with a room that you couldnt . . . open . . . a locked door . . . why was it necessary to secure the house? Why didnt you simply leave there with Tammy Smith?
A.. If we had done that . . . and at a later time found that there was possibly a fleeing felon or someone injured or who knows what was in that room that could have been taken care of . . . Ive seen circumstances like that kind of sneak up on you.
Q. But you actually had no information or facts to support that kind of concern?
A. Just past experience . . .
Q. There was nothing that required you to open the door to that room, was there?
A. Only past experience.
Q. And suspicion?
A. There is always suspicion.
Smith, 565 N.E.2d at 1062. The court went on to state that
the officers given reasons do not constitute specific and articulable facts, but are
instead the mere inchoate and unparticularized suspicion or hunch which were proscribed as
insufficient justification for a warrantless search under Terry v. Ohio (1968), 392 U.S.
1, 27 . . . Id. at 1063.
Similarly, in United States v. Brown, 69 F. Supp. 2d 925 (E.D. Mich. 1999), the court considered whether a search labeled as a protective sweep exceeded its permissible scope under the Fourth Amendment. An ATF agent testified that while other agents in the suspects home were arresting the suspect, he conducted a search: As soon as I execute a[n arrest] warrant, its proper procedure you immediately come in and conduct a security sweep. The court found the ATFs standard procedure to be constitutionally impermissible:
This testimony reveals that the ATF agents did not form a specific belief that Defendants residence harbored a dangerous individual, but instead conducted a protective sweep of both the downstairs and upstairs as a matter of course . . . To the extent this sweep covered areas beyond the immediate vicinity of the arrest, it exceeded the scope of a permissible sweep as defined in Buie.
Brown, 69 F. Supp. 2d at 930.
The officers did not have articulable suspicion justifying a protective sweep of Esteps entire residence. Sergeant Shoemaker testified they asked Estep whether anyone else was in the residence, and Estep replied there was not. (R. at 156.) See footnote No additional testimony was offered regarding why anyone else might be in the residence except for officers statements that a sweep is departmental policy and that felons ideally . . . run with other felons. (Br. of Appellee at 10, citing R. at 157.) Sergeant Shoemaker testified that a search of the house for persons who might endanger officers is standard operating procedure for every felony arrest warrant executed inside a house, in other words, that such searches occur as a matter of course. See id. (R. at 169.) See footnote Sergeant Shoemakers statement in the instant case is the same inchoate and unparticularized suspicion proscribed in Terry and in Smith.
Neither Estep nor the State makes any argument under the first prong of Buie regarding whether the rooms searched immediately adjoined the place of the arrest; nor did the trial court elicit any such testimony or make any such findings. Although there are inferences that may be made about the homes layout from various statements in the record, it is not appropriate for this court to weigh the evidence on this issue for the first time on appeal. Instead, we are bound to apply the general judgment standard to the issue of whether the rooms searched immediately adjoined the place of arrest.
The trial court may well have determined that all the rooms in which contraband was found did immediately adjoin the place of arrest but that the protective sweep was far too extensive in general because it exceeded the spirit of the limited grant to search described in Buie:
We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
Buie, 494 U.S. at 334-5 (1990) (emphasis added).
Several factors, when considered cumulatively, support this theory. Sergeant Milender testified that he searched the entire main floor of the house, including the kitchen, bathroom, spa room, bedroom, spare room, and closets. He testified that another officer at the scene opened the door to the basement and searched the basement, as well. Milender also testified that it took approximately an hour to arrest Estep, take him into custody, and wait for the narcotics officers to arrive at the scene. Detective Gregory West testified the officers simply waited in Esteps living room for approximately forty-five minutes while Dtective Janet Romeril went downtown to get the search warrant signed. Detective Romeril got the call to come to Esteps residence at approximately 10:40 a.m., but the warrant was not executed until 1:40 p.m. These factors combined would support the trial courts statement that: I think the protective sweep or the search for the officers safety was far too extensive. Here, the arrest occurred at the front door, and the evidence supports the conclusion that the sweep took much longer than it would have taken to complete the arrest and depart the premises. See Buie at 335. Based on the foregoing, we agree with the trial court.
2. Issuance of the Search Warrant
The State also contends that the trial court applied the wrong legal standard when it determined that probable cause did not support the issuance of a search warrant. The State argues that instead, the trial court should have determined whether a substantial basis supported the issuing judges decision to issue the warrant. However, the correctness of the judges review of the issuance of the search warrant is immaterial, as the arresting officers violated Esteps rights in order to find the items that led them to obtain the search warrant. Even if we were to accept the States implication that the magistrate did have probable cause to issue the search warrant based upon the evidence before him, we would still find that evidence was properly suppressed because the officers impermissibly conducted an overly broad protective sweep prior to obtaining the warrant.
SHARPNACK, C.J. and NAJAM, J., concur.