FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 02 2012, 9:28 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
MOISE JOSEPH, )
)
Appellant-Defendant, )
)
vs. ) No. 82A05-1108-CR-387
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-1007-FA-869
October 2, 2012
OPINION - FOR PUBLICATION
BRADFORD, Judge
In the instant matter we are faced with the troublesome situation of reviewing an
individual’s convictions relating to an unspeakable crime in light of an apparent violation of
the convicted individual’s Fourth Amendment rights. In reviewing this matter, we must
consider to what extent certain statements made by the convicted individual must be
suppressed following an episode of police misconduct.
Appellant-Defendant Moise Joseph appeals following his convictions for Class A
felony burglary resulting in serious bodily injury,1 Class B felony attempted armed robbery,2
and Class B felony criminal confinement.3 In appealing his convictions, Joseph argues that
the trial court abused its discretion in admitting certain statements that he made to a police
detective during an interview that occurred following the illegal and warrantless entry into
and search of his apartment by police officers. Concluding that the trial court abused its
discretion in admitting Joseph’s statements to the police detective, we reverse.
FACTS AND PROCEDURAL HISTORY4
At approximately 9:30 a.m. on July 16, 2010, police were called to a Sonic Drive-In in
Evansville to investigate two suspicious vehicles. The vehicles were parked, with their
license plates pointing away from the restaurant, in the area of the Sonic parking lot
commonly used by restaurant staff. Evansville Police Officer Gerald Collins responded to
1
Ind. Code § 35-43-2-1 (2010).
2
Ind. Code § 35-42-5-1(1) (2010).
3
Ind. Code §§ 35-42-3-3(a)(1) and 35-42-3-3(b)(2)(A) (2010).
4
We heard oral argument in this matter on August 21, 2012, and wish to thank counsel for the high
quality of their presentations.
2
the call. After arriving at the Sonic, Officer Collins ran the license plates on the vehicles and
learned that neither vehicle had been reported stolen. During the course of running the
vehicles’ license plates, Officer Collins learned that one of the vehicles was registered to
Joseph, and he was provided with Joseph’s address. The vehicles remained in the Sonic
parking lot until approximately 11:00 a.m., when three men returned and hurriedly drove
them away.
Earlier that day, at approximately 7:30 a.m., Larry Matthew Moore and Heather
Reeves left the residence Moore shared with his girlfriend, Megan Darr. Moore’s home was
located in Evansville near the Sonic. At some point during the morning, Darr was awakened
when someone jumped on her in bed, wrapped a blanket around her head, and asked,
“[W]here’s the money at?”. Tr. p. 372. When Darr attempted to break free, the person struck
her on the head with a gun. Darr, who had recently learned that she was pregnant, became
scared and had trouble breathing. At some point, Darr noticed that there were other people in
the home. She also saw that the person on top of her was a black male and that he was, in
fact, wielding a gun. Darr continued to struggle with the man who struck her several more
times with the gun. The man told Darr that she should not struggle because his gun had “a
hairy f’ing trigger.” Tr. p. 376. Eventually, the man threw Darr on the floor, and after Darr
pleaded with him to stop because she was pregnant, kicked her in the ribs, tied her up, and
placed her in a closet with a blanket over her head.
Moore returned home, again with Reeves, at approximately 9:30 a.m. When Moore
and Reeves returned to Moore’s home, they encountered the three men who had invaded the
3
home. One of the men grabbed Reeves and pulled her into the home. Moore escaped and
ran to a nearby business to call the police. After pulling Reeves inside, the three men fled the
home. Police officers arrived at the home shortly thereafter. Darr was transported to the
hospital for treatment. The home had been completely ransacked, and various items were
missing.
Because of the timing of the invasion of Moore’s home, the close proximity of the
home to the Sonic, and his knowledge that Joseph had a gun permit, Evansville Police
Officer Raymond Michael Winters went to the apartment complex where Joseph lived.
Officer Winters acknowledged that, at the time, he did not know anything about the home
invasion, except that there had been one. Officer Winters was joined at the apartment
complex by other officers, including Officer Dan Hoehn. Officer Winters located the
apartment complex manager, who let Officers Winters and Hoehn into Joseph’s apartment.
The officers handcuffed Joseph, read him his Miranda5 advisements, and asked him about his
whereabouts earlier that morning. After being told by the officers that they knew that his
vehicle had been at the Sonic, Joseph indicated that he had been approached by two men
about purchasing an X-Box gaming system for five dollars. During a search of Joseph’s
apartment, officers recovered guns and other items of interest relating to their investigation
into the home invasion. However, it is unclear from the record whether any of these items
were found to have any connection to the home invasion.
5
See Miranda v. Arizona, 384 U.S. 436 (1966).
4
After arriving on the scene, Evansville Police Detective Ron Brown asked Joseph,
who was still handcuffed, whether he would be willing to go to the police station to answer a
few questions. Joseph answered in the affirmative. Joseph was then transported to the police
station by Officer Winters. Upon arriving at the police station, Detective Brown again read
Joseph his Miranda advisements before questioning him about the evidence recovered from
his home and his knowledge of the home invasion. Joseph repeated his earlier statement
about the X-Box gaming system, but denied being involved in the home invasion.
On June 20, 2010, the State charged Joseph with Class A felony burglary resulting in
bodily injury, Class B felony attempted armed robbery, and Class B felony criminal
confinement. Joseph filed a motion to suppress all evidence recovered during the search of
his apartment as well as his statements to Officers Winters and Hoehn and Detective Brown.
Following a hearing, the trial court suppressed all evidence recovered from Joseph’s
apartment as well as his statements to Officers Winters and Hoehn. The trial court denied the
motion with respect to Joseph’s statements to Detective Brown. A jury trial commenced on
April 11, 2011, after which the jury found Joseph guilty as charged. On July 1, 2011, the trial
court sentenced Joseph to an aggregate term of twenty-six years of incarceration. This appeal
follows.
DISCUSSION AND DECISION
Joseph contends that the trial court abused its discretion in admitting the statements
that he made to Detective Brown following the warrantless entry into and search of his
apartment by Officers Winters and Hoehn. Specifically, Joseph argues that his statements to
5
Detective Brown constitute “fruit of the poisonous tree” and, therefore, were inadmissible at
trial.6
A. Standard of Review
Our standard of review for rulings on the admissibility of evidence is
essentially the same whether the challenge is made by a pre-trial motion to
suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
evidence, and we consider conflicting evidence most favorable to the trial
court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
trans. denied. We also consider uncontroverted evidence in the defendant’s
favor. Id.
Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007).
A trial court has broad discretion in ruling on the admissibility of evidence.
Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw v. State,
759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will reverse a trial court’s
ruling on the admissibility of evidence only when the trial court abused its discretion. Id.
(citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is
clearly against the logic and effect of the facts and circumstances before the court. Id. (citing
Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000)).
B. Analysis
1. The Fourth Amendment
On appeal, Joseph claims that the warrantless entry into and search of his apartment by
6
On appeal, Joseph frames his argument as a challenge to the constitutionality of the warrantless entry
of his apartment under the Fourth Amendment to the United States Constitution. Joseph does not make a
separate argument under Article 1, Section 11 of the Indiana Constitution. As such, any claim of error under
the Indiana Constitution is consequently waived. See Davis v. State, 907 N.E.2d 1043, 1048 n.10 (Ind. Ct.
App. 2009).
6
Officers Winters and Hoehn violated the Fourth Amendment to the United States
Constitution.
The fundamental purpose of the Fourth Amendment to the United States
Constitution is to protect the legitimate expectations of privacy that citizens
possess in their persons, their homes, and their belongings. Taylor v. State,
842 N.E.2d 327, 330 (Ind. 2006) (citing Ybarra v. Illinois, 444 U.S. 85, 91,
100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). The principal protection against
unnecessary intrusions into private dwellings is the warrant requirement
imposed by the Fourth Amendment and, therefore, searches and seizures inside
a home without a warrant are presumptively unreasonable. Alspach v. State,
755 N.E.2d 209, 212 (Ind. Ct. App. 2001), trans. denied. The State bears the
burden of proving that a warrantless search falls within an exception to the
warrant requirement. Taylor, 842 N.E.2d at 330. Whether a particular
warrantless search violates the guarantees of the Fourth Amendment depends
on the facts and circumstances of each case. Rush v. State, 881 N.E.2d 46, 50
(Ind. Ct. App. 2008).
Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010).
The existence of exigent circumstances falls within an exception to the warrant
requirement. Id. (citing Holder v. State, 847 N.E.2d 930, 936 (Ind. 2006)). In other words,
the warrant requirement becomes inapplicable when the exigencies of the situation make the
needs of law enforcement so compelling that the warrantless search is objectively reasonable
under the Fourth Amendment. Id. (quotations omitted). Under the exigent circumstances
exception, police may enter a residence without a warrant if the situation suggests a
reasonable belief that someone inside the residence is in need of aid. Id. (citing Smock v.
State, 766 N.E.2d 401, 404 (Ind. Ct. App. 2002)). However, an officer’s subjective belief
that exigent circumstances exist is insufficient to justify a warrantless entry. Id. (citing
Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2004)). Rather, the test is objective,
and the government must establish that the circumstances as they appear at the moment of
7
entry would lead a reasonable, experienced law enforcement officer to believe that someone
inside the house required immediate assistance. Id. (citing Cudworth, 818 N.E.2d at 137).
“Moreover, ‘while exigent circumstances justify dispensing with a search warrant,
they do not eliminate the need for probable cause.’” Id. (quoting Cudworth, 818 N.E.2d at
137). The probable cause element may be satisfied where the officers reasonably believe that
a person is in danger. Id. (citing Cudworth, 818 N.E.2d at 137). “‘The burden is on the
government to demonstrate exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries.’” Id. at 579-80 (quoting
McDermott v. State, 877 N.E.2d 467, 474 (Ind. Ct. App. 2007)).
Here, the State concedes that the warrantless entry into and search of Joseph’s
apartment by Officers Winters and Hoehn “may well have been without probable cause and
therefore in violation of [Joseph’s] rights under the Fourth Amendment.” Appellee’s Br. p.
8. Moreover, the State does not point to any exigent circumstances that it asserts would
overcome the presumption of unreasonableness attached to Officer Winters’s and Hoehn’s
warrantless entry into and search of Joseph’s apartment. Thus, in light of the State’s
concession that Officers Winters and Hoehn lacked probable cause to search Joseph’s
apartment, together with its failure to point to any exigent circumstances sufficient to
overcome the presumption of unreasonableness attached to the warrantless entry into and
search of Joseph’s apartment, we conclude that the warrantless entry into and search of
Joseph’s apartment violated Joseph’s rights under the Fourth Amendment.
2. The Exclusionary Rule and the Doctrine of Attenuation
8
Having concluded that the search of Joseph’s apartment violated Joseph’s rights under
the Fourth Amendment, we must next consider whether Joseph’s comments to Detective
Brown were sufficiently attenuated to dissipate any taint of the illegal search. “The
exclusionary rule is a judicially created remedy designed to safeguard the right of the people
to be free from ‘unreasonable searches and seizures.’” Trotter, 933 N.E.2d at 581 (quoting
U.S. v. Calandra, 414 U.S. 338, 348 (1974)). “The main purpose of the exclusionary rule ‘is
to deter future unlawful police conduct’ and, thus, evidence obtained through an illegal
search and seizure is inadmissible at trial.” Id. (quoting Calandra, 414 U.S. at 347). While it
is true that evidence stemming from an illegal arrest or entry may be excluded upon proper
motion by the defendant, see Snellgrove v. State, 569 N.E.2d 337, 341 (Ind. 1991), this court
has recognized that “[n]ot all evidence is fruit of the poisonous tree and subject to suppress
simply because it would not have come to light but for illegal police activity.” State v.
Foster, 950 N.E.2d 760, 763 (Ind. Ct. App. 2011), trans. denied.
Fourth Amendment jurisprudence has recognized an exception to the
exclusionary rule in cases where the connection between the illegal police
conduct and the subsequent discovery of evidence “become[s] so attenuated
that the deterrent effect of the exclusionary rule no longer justifies its cost.”
Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)
(Powell, J., concurring). Specifically, “[i]n some situations, the causal chain is
sufficiently attenuated to dissipate any taint of [the illegal police activity],
allowing the evidence seized during a search to be admitted.” Cole v. State,
878 N.E.2d 882, 887 (Ind. Ct. App. 2007). This is known as the attenuation
doctrine. See Quinn v. State, 792 N.E.2d 597, 601 (Ind. Ct. App. 2003) (citing
Brown, 422 U.S. 590, 603-04, 95 S.Ct. 2254), trans. denied.
Trotter, 933 N.E.2d at 581. Put another way, attenuation simply means that the connection
between the illegal police conduct and Joseph’s statements has become so weakened in force,
9
intensity, and effect that the taint of the illegal police conduct has been dissipated. See
Foster, 950 N.E.2d at 762.
The State argues that despite the unconstitutional nature of Officers Winters’s and
Hoehn’s entry into and search of Joseph’s apartment, the trial court properly admitted
Joseph’s statements to Detective Brown pursuant to the doctrine of attenuation.
Cases have established that three factors should be considered in determining
whether the connection has become too weak: (1) the time elapsed between the
illegality and the acquisition of the evidence; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the official misconduct.
See, e.g., Turner v. State, 862 N.E.2d 695, 701 (Ind. Ct. App. 2007). The
important consideration in the third factor is whether the evidence came from
the “‘exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’” [Quinn, 792 N.E.2d at
600] (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407,
417, 9 L.Ed.2d 441 (1963)).
Foster, 950 N.E.2d at 763. It is also important to consider whether officers have given
Miranda warnings to a defendant when determining whether the statement or confession was
the product of an illegal arrest. Snellgrove, 569 N.E.2d at 341-42.
In Snellgrove, following a wave of armed robberies, police detectives entered
Snellgrove’s home without a warrant and arrested him and his fiancée. Id. at 339.
Snellgrove was read his Miranda advisements and taken to the police station. Id. At the
stationhouse, Snellgrove was again read his Miranda advisements. Id. Snellgrove indicated
that he understood his rights and that he did not wish to speak to the detectives. Id.
Eventually, Snellgrove was informed that his fiancée was cooperating with the detectives and
was told what she had said to the detectives concerning the robberies. Id. Snellgrove
subsequently told the detectives about his involvement in the robberies. Id. Snellgrove was
10
charged with and convicted of four counts of Class B felony armed robbery. Id. at 338.
Snellgrove challenged the admissibility of his confession, claiming that it was derived from
his illegal arrest. Id. at 339.
Upon review, the Indiana Supreme Court held that Snellgrove was correct in his
assertion that his arrest was carried out in an unlawful manner. Id. at 340. In determining
whether Snellgrove’s subsequent confession was “fruit[] of such illegality[,]” the Court noted
that prior to giving his confession, Snellgrove was read his Miranda advisements three times.
Id. at 342. The Court determined that, based on the facts at issue, the illegal police activity
did not rise to the level of purposeful or flagrant police misconduct because the police had
probable cause to obtain a warrant for Snellgrove’s arrest in connection to the robberies. Id.
As to the temporal proximity, the Court noted that this factor could be an ambiguous
one. Id. The Court determined that the approximately four hours that elapsed between
Snellgrove’s arrest and his confession were such that “carries some small weight, certainly
not decisive, tending to dissipate the taint of the illegality” and could be considered with the
other factors. Id. The Court further determined that the record did not disclose the presence
of significant intervening circumstances. Id. After balancing these factors, the Court
concluded that Snellgrove’s decision to confess was an act of his free will and not the
product of his illegal arrest. Id. at 343.
In Foster, police detectives entered Foster’s apartment without a warrant and
handcuffed him. 950 N.E.2d at 761. One of the detectives read Foster his Miranda
advisements and transported him to the police station. Id. While en route to the police
11
station, Foster made inculpatory statements. Id. At the station, he was again read his
Miranda advisements. Id. Foster signed a waiver of his rights and submitted to questioning
by the detectives, during which time he made additional inculpatory statements. Id. After
questioning Foster, the detectives sought and obtained a warrant for his arrest. Id. Foster
was charged with Class A felony dealing in cocaine. Id. Foster sought to suppress his
statements as evidence that stemmed from his illegal arrest following the detectives’ illegal
entry into his apartment. Id.
Upon review, we noted that very little time lapsed between the arrest and the
admissions made in the police car and at the police station, and that there is “little doubt that
[defendant’s] statements came from the exploitation of the unlawful arrest.” Id. at 763. The
State argued that the giving of Miranda advisements constituted a valid intervening
circumstance. Id. We disagreed and concluded that, like in Turner, “‘[g]iven the near-
constant interaction between [the defendant] and the police that evening, we cannot say that
the connection between the illegal [police activity] and [defendant’s] confession had been
attenuated sufficiently.’” Id. (quoting Turner, 862 N.E.2d at 702). We concluded that
because the connection between the arrest and the securing of statements disclosed near
constant interaction and exploitation of the arrest, a finding of attenuation was precluded, and
as such, the trial court properly excluded Foster’s statements to police. Id.
Here, the State concedes that Officers Winters and Hoehn entered into and searched
Joseph’s apartment without a warrant in violation of the Fourth Amendment. The State
further concedes that unlike in Snellgrove, Officers Winters and Hoehn did not have probable
12
cause to believe that Joseph was involved in the home invasion when they entered into and
searched his apartment. The record demonstrates that upon entering Joseph’s apartment,
Officers Winters and Hoehn read Joseph his Miranda advisements before speaking to Joseph.
Officers Winters and Hoehn claim that Joseph agreed to go to the police station for
questioning after he made an inculpatory statement regarding his whereabouts earlier that
morning.7 Upon arriving at the police station, Joseph was again read his Miranda
advisements. Joseph gave a statement to Detective Brown regarding his actions that morning
and denied any involvement in the home invasion. Joseph did not express any reluctance to
speak with Officers Winters and Hoehn or Detective Brown.
Joseph claims that his statements to Detective Brown should be excluded because the
statements were tainted by the illegal entry into and search of his apartment by Officers
Winters and Hoehn. Specifically, Joseph claims that he remained handcuffed continuously
from the first moment Officers Winters and Hoehn entered his home (with the exception of
the few minutes that he was taken outside for a potential witness identification) and was soon
thereafter transported to the police station. Detection Brown questioned Joseph about his
prior statements to Officers Winters and Hoehn as well as certain pieces of evidence found in
Joseph’s apartment. By this time, Joseph argues that the “cat was already out of the bag.”
Appellant’s App. p. 19. Joseph argues that the record is “woefully lacking” of any
intervening circumstances upon which the trial court could have properly determined that his
7
Again, this statement, like the evidence recovered from Joseph’s apartment, was suppressed by
the trial court and not admitted into evidence at trial.
13
decision to submit to an interrogation was an act of free will rather than the product of his
illegal arrest. Thus, Joseph claims that the trial court abused its discretion in admitting his
statement to Detective Brown into evidence at trial.
For its part, the State claims that Joseph’s statements to Detective Brown were
sufficiently attenuated to dissipate any taint of the illegal police activity.8 In support, the
State points out that like in Snellgrove, Joseph was read his Miranda advisements on multiple
occasions following the illegal police entry into his apartment and before questioning by
Detective Brown. The State cites to Snellgrove and asserts that, while not the only factor, the
fact that Joseph was given his Miranda advisements is an important factor demonstrating that
his statements were not the product of the illegal police conduct.
The State also points to the fact that approximately four hours had elapsed between
the initial illegal entry and Joseph’s statements to Detective Brown. The State acknowledges
that the temporal proximity factor may be of minor significance, but notes that in Snellgrove,
the Indiana Supreme Court held that while the temporal proximity factor is somewhat
ambiguous and insignificant, the fact that the search occurred within four hours of the illegal
conduct did not render the attenuation doctrine inapplicable. See 569 N.E.2d at 342. Further,
while the State acknowledges that the warrantless entry into and search of Joseph’s home by
Officers Winters and Hoehn was illegal as it was in violation of the Fourth Amendment, the
State claims that the fact that Joseph’s statements were made at the police station rather than
8
The State has not argued that the admission of Joseph’s statements to Detective Brown was
harmless.
14
at his home is an additional intervening circumstance that would tend to indicate that his
statements were sufficiently attenuated from the illegal police conduct.
The record indicates that while Joseph was given his Miranda advisements at least
two times and was transported to the police station prior to making his statements to
Detective Brown, it also indicates that Joseph was in constant police custody from the time
that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware
that their search had resulted in the discovery of potentially relevant evidence. Joseph was
questioned about this evidence by both the officers at the scene and Detective Brown at the
police station. In addition, nothing in the record indicates that Joseph had any way of
knowing that the potential evidence found in his apartment and his statements to Officers
Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown.
Based on these facts, especially the fact that Joseph was in constant police custody from the
time of their illegal entry into and search of his apartment, knew what potential evidence had
been discovered in his apartment, and had made prior potentially incriminating statements to
Officers Winters and Hoehn, we cannot conclude that Joseph’s comments to Detective
Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any
taint of the illegal police conduct. As such, we conclude that the trial court abused its
discretion in admitting Joseph’s statements to Detective Brown at trial.
The judgment of the trial court is reversed.
FRIEDLANDER, J., and BARNES, J., concur.
15