Mar 11 2015, 6:12 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ignacio Perez, March 11, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1407-CR-236
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable George W.
Appellee-Plaintiff Biddlecome, Judge
Cause No. 20D03-0909-FA-40
Najam, Judge.
Statement of the Case
[1] Ignacio Perez appeals his convictions, following a bench trial, for dealing in
cocaine, as a Class A felony, and resisting law enforcement, as a Class A
misdemeanor. Perez presents two issues for our review, both of which we
addressed in detail in a prior interlocutory appeal brought by Perez. See Perez v.
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State, 981 N.E.2d 1242 (Ind. Ct. App. 2013), trans. denied. Thus, were it not for
an opinion issued by the United States Supreme Court subsequent to that
appeal, see Florida v. Jardines, 133 S. Ct. 1409 (2012), we would apply the law of
the case doctrine and affirm in all respects. However, Jardines requires us to
revisit Perez’s second claim of error, which we restate as two issues:
1. Whether a police canine sniff conducted at the front door of
Perez’s home was an unconstitutional search under the Fourth
Amendment to the United States Constitution.
2. Whether the trial court abused its discretion when it admitted
certain evidence discovered pursuant to a search warrant for the
interior of Perez’s home when the search warrant was based on a
probable cause affidavit that, among other things, contained
information discovered during the canine sniff.
[2] We first hold that the law of the case doctrine precludes our review of Perez’s
first claim of error, namely, that the police unconstitutionally seized his person.
However, in light of Jardines, we also hold that the canine sniff of Perez’s front
door violated the Fourth Amendment. Nevertheless, the probable cause
affidavit contained sufficient facts, independent of those discovered by the
unconstitutional canine sniff, to provide probable cause for the warrant to
search Perez’s home. Thus, we hold that the trial court did not abuse its
discretion when it admitted evidence discovered during the execution of the
warrant, and we affirm Perez’s convictions.
Facts and Procedural History
[3] We recited some of the relevant facts in Perez’s prior appeal:
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On August 18, 2009, an undercover officer with the Elkhart
Police Department’s Interdiction and Covert Enforcement (ICE)
unit purchased 453 grams of marijuana and 29 grams of cocaine
from an individual named Concepcion Avalos-Cortez. The
officer and Cortez completed this transaction at a carwash in
Elkhart. After the officer purchased the marijuana, Cortez stated
that another individual would deliver the cocaine to the carwash.
At some point, an older-model blue Dodge Caravan arrived, and
Cortez entered the van. He emerged and handed the officer 29
grams of cocaine. It was subsequently discovered that the van
was registered to Jaime Galvez in South Bend. However, after
several trips to Galvez’s residence and hours of surveillance, the
officers were not able to determine that the vehicle was registered
to that particular resident.
Two days later, the undercover officer arranged to purchase more
cocaine from Cortez. When the officer first arrived at the car
wash where the original transaction had occurred, Cortez
informed the officer that his cocaine supplier was running late
but would deliver the drugs shortly.
Thereafter, when the police officer observed a maroon Ford F-
150 truck parked behind Cortez, it was determined that this truck
was also registered to Jaime Galvez at the same address. The
officer again purchased 29 grams of cocaine from Cortez. The
officer had reason to believe Cortez received the drugs from the
person in the truck. During hours of surveillance at the registered
address, police never saw the truck arrive at or leave the
residence.
On August 31, the undercover officer again arranged to purchase
15 grams of cocaine from Cortez. The same maroon truck was at
the car wash during this transaction, and the officer again
believed that the cocaine had been provided by the person in the
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truck. Officers from ICE followed the truck directly from the car
wash to Perez’s residence.
The following day, the police began surveillance of Perez’s
residence. The blue Dodge minivan that was used in the
controlled buy on August 18 was seen at Perez’s residence, and a
records search revealed that Perez owned the residence. The
police obtained a photograph of Perez from the Bureau of Motor
Vehicles (BMV) and discovered that Perez had a handgun
permit. The officers believed that the individual delivering
cocaine to Concepcion at the car wash might be obtaining the
cocaine from Perez’s house.
The next day, the undercover officer again purchased 15 grams of
cocaine from Cortez at the car wash. The officer then asked
Cortez if he could obtain an additional one-and-one-half ounces
of cocaine. Cortez told the officer that he could obtain the
cocaine within an hour. Cortez remained at the car wash. At
some point, a white Ford truck registered to Perez arrived, and
the driver met with Cortez for about five minutes. After Perez’s
truck left, Cortez contacted the undercover officer and informed
him that he had the cocaine and arranged to meet. The police
officers then followed Cortez, stopped his vehicle, and seized
one-and-one-half ounces of cocaine from [Cortez’s vehicle].
After arresting Cortez, the police officers went to Perez’s
residence. Captain Turner from ICE asked Indiana State Police
Trooper Mick Dockery and his canine that had assisted in the
traffic stop and the arrest of Cortez[] to accompany the officers to
Perez’s residence and remain nearby in case a uniformed officer
was needed.
Captain Turner and another officer arrived at Perez’s home and
knocked on the front door. The officers saw two surveillance
cameras at the front of Perez’s house pointed at the front door
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and driveway. From their training and experience, the officers
recognized that these types of surveillance systems are commonly
used by drug traffickers at their drug locations.
Perez answered the door, asked the officers to wait while he
disarmed his residential alarm system, and stepped out onto the
porch to speak with the officers. The police officers clearly
identified themselves to Perez as law enforcement officers, and
Perez locked the door behind him as he stepped onto the porch.
Even though the officers recognized him from his BMV
photograph, the officers asked Perez his name. Perez responded,
“[W]hy”? State’s Ex. p. 4. The officers then explained to Perez
that a white truck registered to him had been used to deliver
cocaine earlier that day. However, Perez lied to them and denied
owning the truck. He also denied having any drugs in the house.
While speaking with the officers, Perez was nervous and
agitated, breathing heavily, and pacing back and forth with his
arms folded. During the conversation, Perez walked down from
his porch, past the officers, and onto an adjacent patio. The
officers remained on the porch steps, which were now between
Perez and the front door. Captain Turner radioed Trooper
Dockery to come to the scene because Perez was “belligerent.”
State’s Ex. 1.
Captain Turner told Perez that he was going to obtain a search
warrant for the residence. The other officers saw Perez’s wife at
the front door and asked her to step outside. When Perez’s wife
opened the door, Perez started screaming at her in Spanish and
moved back toward the officers at the door of his residence. The
officers told Perez to stop, and Captain Turner stood with his
arms in the air telling Perez to back up. The police officers did
not touch Perez, but he approached them and started to “chest
bump” the officers. Perez also attempted to break past them and
move toward the front door. Tr. p. 79, 88.
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Captain Turner told Trooper Dockery to handcuff Perez.
Trooper Dockery, who had arrived in a patrol car and was
dressed in uniform, stepped in front of Perez, pulled out his
handcuffs, and attempted to place them on Perez. However,
Perez repeatedly pulled his arm away and moved backwards
towards the driveway. Trooper Dockery pressed Perez against a
parked SUV and tried to handcuff him again. Perez fought back,
grabbed Trooper Dockery’s gun, and the two wrestled to the
ground in front of the SUV.
Perez was arrested for resisting law enforcement. When Perez
was searched, the police discovered over $1000 cash in Perez’s
pocket, $260 of which had been used by ICE to buy cocaine that
day. The canine then conducted a “sniff” of Perez’s front door.
Tr. p. 80. The front door was closed at the time, and the canine
alerted to the presence of illegal narcotics.
Perez’s wife informed the officers that several vehicles were
parked in the garage, including a white truck. She also told the
officers that no one else was in the home. The police then
secured a search warrant for Perez’s house at 12:10 a.m. on
September 3, 2009.
During a search of the residence, the police discovered over
eighty grams of a powdery substance that field tested positive for
cocaine, a semiautomatic handgun, ammunition, two digital
scales, six open boxes of plastic bags, and over $2400 cash in the
master bedroom.
On September 9, 2009, the State charged Perez with dealing in
cocaine, [as] a class A felony, and resisting law enforcement, [as]
a class A misdemeanor. Thereafter, Perez filed a motion to
suppress, alleging that “all evidence seized . . . or obtained by law
enforcement authorities as a result of said unreasonable detention
and subsequent search of [his] person and home should be
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suppressed as a result of the violation of [his] Constitutional
rights under the 4th Amendment to the United States
Constitution and under Article I, Section 11 of the Indiana
Constitution, and pursuant to the ‘Fruit of the Poisonous Tree’
doctrine as announced by the United States Supreme Court.”
Appellant’s App. p. 41.
Following a hearing on November 10, 2011, the trial court
denied Perez’s motion to suppress. The trial court determined,
among other things, that the police had reasonable suspicion to
detain Perez to complete their investigation, and that Perez’s
arrest for resisting law enforcement was lawful. As a result, the
trial court determined that any evidence seized as a result of his
arrest was admissible at trial.
It was further determined that because the police officers were
lawfully on the premises, it was lawful for the dog to sniff the
residence. Thus, based on the results of that sniff, it was
reasonable for the police officers to obtain a search warrant for
Perez’s house and search it. Perez now brings this interlocutory
appeal, challenging the validity of his detention by police officers
and the subsequent search of his residence.
Perez, 981 N.E.2d at 1246-48.
[4] In his interlocutory appeal, Perez argued that:
the evidence must be suppressed because the police illegally
detained him and subsequently placed him in handcuffs.
Therefore, Perez contends that his arrest for resisting law
enforcement was unlawful and the subsequent search of his
person violated his right to be free from unreasonable search and
seizure. Perez also claims that there was no probable cause to
issue the search warrant for his residence and that the evidence
seized during the search of his residence was unlawful.
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Id. at 1248. However, we affirmed the trial court’s ruling and held that (1) the
officers had reasonable suspicion to detain him and, therefore, that the they did
not illegally seize him; (2) Perez forcibly resisted Trooper Dockery’s attempt to
handcuff him, which justified Perez’s arrest; (3) the cash discovered on Perez’s
person was discovered pursuant to a lawful search incident to that arrest; (4) the
canine sniff of Perez’s door was lawful; (5) the search warrant for Perez’s home
was supported by probable cause; and (6) the search and seizure of Perez did
not violate the Indiana Constitution. Id. at 1248-52.
[5] Subsequently, Perez filed a supplemental motion to suppress, which the trial
court did not rule on until after Perez’s trial, held on May 20, 2014. Following
the trial, the court convicted Perez as charged, and it denied his supplemental
motion to suppress. The court then sentenced Perez to concurrent sentences of
thirty-years for dealing in cocaine, with five years suspended, and one year for
resisting law enforcement. This appeal ensued.
Discussion and Decision
[6] Perez presents substantially the same arguments here that he presented in his
prior interlocutory appeal. Perez contends that the officers illegally seized him
in his front yard because they lacked reasonable suspicion or probable cause to
do so, which, he reasons, makes the search incident to arrest unconstitutional.
Further, Perez asserts that the canine sniff of his front door was
unconstitutional and that, absent the information obtained from that search, the
search warrant for his home was unsupported by probable cause. Thus, he
concludes, the trial court abused its discretion when it admitted evidence
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obtained from those searches against him. Among these claims, Perez presents
only one new issue, which relates solely to the canine sniff, and thus we apply
the law of the case doctrine to all but this one issue.
Law of the Case Doctrine
[7] The law of the case doctrine is a discretionary tool. Cutter v. State, 725 N.E.2d
401, 405 (Ind. 2000). The doctrine allows “appellate courts to decline to revisit
legal issues already determined on appeal in the same case and on the same
facts,” and it may be applied “only to those issues actually considered and
decided.” Id. (internal quotation marks omitted). The doctrine exists “to
promote finality and judicial economy.” Id.
[8] In Perez’s interlocutory appeal, we considered and decided all of the issues
presented here. However, Perez now presents supplemental authority for this
court to consider, which bears on his claim regarding the canine sniff. Namely,
Perez asserts that our previous decision regarding the canine sniff of his door
conflicts with Jardines, a case handed down by the United States Supreme Court
approximately one month after we decided Perez’s interlocutory appeal. Thus,
we consider only Perez’s arguments related to Jardines. Having already
decided that Perez was lawfully detained and arrested, and that police
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conducted a valid search incident to that arrest, we apply the law of the case
doctrine to those issues and do not revisit them.1
Canine sniff
[9] Prior to Jardines, Indiana law held that one “does not harbor an expectation of
privacy on a front porch where salesmen, neighbors, visitors, or religious
proselytizers may appear at any time. In other words, as long as an officer is
lawfully on the premises, the officer may have a canine sniff the residence
without implicating the Fourth Amendment.” Perez, 981 N.E.2d at 1250 (citing
Hoop v. State, 909 N.E.2d 463, 468 (Ind. Ct. App. 2009)). Jardines, however,
concluded the opposite. See 133 S. Ct. at 1414-15.
[10] In Jardines, police received an unverified tip that Jardines was growing
marijuana in his home, and they dispatched a surveillance team to his
residence. Police could not see inside Jardines’ home, and fifteen minutes of
surveillance revealed no activity inside or outside of the residence. Thus, police
brought a drug-sniffing dog to the home’s front door. “After sniffing the base of
the front door,” the dog alerted that it had smelled narcotics. Id. at 1413. On
that basis alone, police applied for and received a warrant to search the interior
of Jardines’ home. Id. A later search revealed marijuana plants, and Florida
charged Jardines with drug trafficking. Id.
1
Perez also contends that the recent opinion by our supreme court in Clark v. State, 994 N.E.2d 252 (Ind.
2013), alters the analysis that we applied in his interlocutory appeal to the detainment question. We disagree.
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[11] In response to the charges, Jardines moved to suppress the evidence recovered
during the search of his home on the basis that the warrantless canine sniff by
the dog was a physical intrusion on his home within the meaning of the Fourth
Amendment. Id. He argued that the alert by the dog to the presence of
narcotics within his home provided the sole basis in support of the subsequently
obtained search warrant for his home, and, thus, any evidence seized was fruit
of the poisonous tree. Id. The Florida state trial court agreed and suppressed
the evidence. After several levels of appeal, the Supreme Court granted
certiorari to consider “whether using a drug-sniffing dog on a homeowner’s
porch to investigate the contents of the home is a ‘search’ within the meaning of
the Fourth Amendment,” the Supreme Court ultimately held that it was and
affirmed. Id. at 1413, 1417-18.
[12] In affirming the trial court, the Supreme Court held that the curtilage of the
home, the area immediately surrounding one’s home and to which the activity
of home life extends, “enjoys protections as part of the home itself.” Id. at
1414-15. It further held that “[t]he front porch is the classic exemplar” of the
curtilage of a home, id. at 1415, and, in so doing, it stated that the Fourth
Amendment “would be of little practical value if the State’s agents could stand
[o]n a home’s porch . . . and trawl for evidence with impunity,” id. at 1414.
[13] After establishing that the front porch is part of a home’s curtilage and that it
enjoys Fourth Amendment protections, the Court then held that officers
physically intruded onto Jardines’ porch without license, in violation of the
Fourth Amendment. Id. at 1417. It stated:
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A license may be implied from the habits of the country,
notwithstanding the strict rule of the English common law as to
entry upon a close. We have accordingly recognized that the
knocker on the front door is treated as an invitation or license to
attempt an entry justifying ingress to the home by solicitors,
hawkers[,] and peddlers of all kinds. This implicit license
typically permits the visitor to approach the home by the front
path, knock promptly, wait briefly to be received, and then
(absent invitation to linger longer) leave. . . . Thus, a police
officer not armed with a warrant may approach a home and
knock, precisely because that is no more than any private citizen
might do.
But introducing a trained police dog to explore the area around
the home in hopes of discovering incriminating evidence is
something else. There is no customary invitation to do that. An
invitation to engage in canine forensic investigation assuredly
does not inhere in the very act of hanging a knocker. To find a
visitor knocking on the door is routine (even if sometimes
unwelcome); to spot that same visitor exploring the front path
with a metal detector, would inspire most of us to—well, call the
police. The scope of a license—express or implied—is limited
not only to a particular area but also to a specific purpose.
Consent at a traffic stop to an officer’s checking out an
anonymous tip that there is a body in the trunk does not permit
the officer to rummage through the trunk for narcotics. Here, the
background social norms that invite a visitor to the front door do
not invite him there to conduct a search.
Id. at 1415-16 (emphases supplied).
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[14] Jardines controls here.2 Although the officers had a license to approach Perez’s
porch and front door to conduct a knock-and-talk, they did not have a similar
license to conduct a warrantless search there, with a dog or otherwise. Consent
to talk at one’s door does not provide consent to search the curtilage of one’s
home. See id. at 1416. “The scope of a license—express or implied—is limited
not only to a particular area but also to a specific purpose.” Id. Thus, we hold
that the warrantless canine sniff of Perez’s front door physically intruded onto
the curtilage of his home and, therefore, was an unconstitutional search in
violation of the Fourth Amendment.
Abuse of Discretion and Search Warrant
[15] Although the police violated Perez’s Fourth Amendment rights by conducting
the canine sniff, we nevertheless hold that the probable cause affidavit
contained sufficient information, independent of that obtained by the
unconstitutional search at the door, to supply probable cause for the warrant to
search the interior of Perez’s home. Thus, the trial court did not abuse its
discretion when it admitted evidence of the narcotics and paraphernalia found
inside of Perez’s home pursuant to that warrant.
2
We are not persuaded by the State’s attempts to distinguish the facts here from those in Jardines.
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[16] “The general admission of evidence at trial is a matter we leave to the discretion
of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). As we
explained in J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014):
A trial court’s decision to admit or exclude evidence is reviewed
for an abuse of discretion. A trial court abuses its discretion
when its decision is clearly against the logic and effect of the facts
and circumstances or when the trial court has misinterpreted the
law. The constitutionality of a search is a question of law, which
we review de novo.
The ordinary remedy for an unconstitutional search is exclusion
of the evidence obtained “in a prosecution against the victim of
the unlawful search . . . absent evidence of a recognized
exception.” Clark, 994 N.E.2d at 260.
[17] Further:
The Fourth Amendment to the United States Constitution and
article 1, section 11 of the Indiana Constitution both require
probable cause for the issuance of a search warrant. Probable
cause is a fluid concept incapable of precise definition and is to
be decided based on the facts of each case. In deciding whether
to issue a search warrant, the issuing magistrate’s task is simply
to make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit, there is a fair
probability that evidence of a crime will be found in a particular
place. The reviewing court’s duty is to determine whether the
issuing magistrate had a substantial basis for concluding that
probable cause existed. A substantial basis requires the reviewing
court, with significant deference to the magistrate’s
determination, to focus on whether reasonable inferences drawn
from the totality of the evidence support the finding of probable
cause. A reviewing court for this purpose includes both the trial
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court ruling on a suppression motion and an appellate court
reviewing that decision. Although we review de novo the trial
court’s substantial-basis determination, we afford the magistrate’s
determination significant deference as we focus on whether
reasonable inferences drawn from the totality of the evidence
support that determination. In determining whether an affidavit
provided probable cause for the issuance of a search warrant,
doubtful cases are to be resolved in favor of upholding the
warrant. Additionally, we will not invalidate a warrant by
interpreting probable cause affidavits in a hypertechnical, rather
than a common[-]sense, manner.
Mehring v. State, 884 N.E.2d 371, 376-77 (Ind. Ct. App. 2008) (quotation marks
and citations omitted; emphases supplied), trans. denied.
[18] Perez reasons that, absent the discovery from the unconstitutional canine sniff
that drugs were in his home, police lacked probable cause to obtain a search
warrant for the interior of his home. Thus, he contends that both the search
warrant and all of the evidence discovered pursuant to it are inadmissible under
the fruit of the poisonous tree doctrine. See Hanna v. State, 726 N.E.2d 384, 389
(Ind. Ct. App. 2000) (“The ‘fruit of the poisonous tree’ doctrine is one facet of
the exclusionary rule of evidence which bars the admissibility in a criminal
proceeding of evidence obtained in the course of unlawful searches and
seizures.”). We disagree.
[19] Where a search warrant is based on both legally obtained information and
information obtained in contravention to the Fourth Amendment, we will
determine the legitimacy of the warrant only in light of the legally obtained
information. See Davis v. State, 907 N.E.2d 1043, 1051-52 (Ind. Ct. App. 2009).
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Here, excising from the probable cause affidavit the information learned from
the canine sniff—namely, that Perez had drugs in his home—the issuing
magistrate still had sufficient information to “make a practical, common-sense
decision [that], given all the circumstances set forth in the affidavit, there is a
fair probability that evidence of a crime will be found in a particular place.”
Mehring, 884 N.E.2d at 377-78. In other words, “despite [the] illegal search of
[Perez’s] [front door] in violation of the Fourth Amendment, there was enough
untainted information in the probable cause affidavit to support the issuance of
the search warrant.” Davis, 907 N.E.2d at 1056.
[20] In particular, the evidence before the magistrate demonstrated that three
separate vehicles, involved in four different controlled drug buys, were
associated with Perez’s residence. Two were observed at his home, and one
was registered to him. Despite this, when confronted at his home by police
about the registration of one of the vehicles to him, Perez lied to police and
denied owning the truck. Further, police observed high-tech security
equipment, commonly used by drug traffickers, at Perez’s home. Perez also
acted suspiciously when confront by police: He paced and breathed heavily,
and he was visibly nervous and agitated. And, when an officer attempted to
detain Perez after he bumped them with his chest, Perez grabbed the officer’s
sidearm and wrestled with him. Finally, in a lawful search incident to arrest,
police recovered $1,000 on Perez’s person, $260 of which had been used by
police in prior controlled buy. Thus, probable cause supported the search
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warrant for Perez’s home, and the trial court did not abuse its discretion when it
admitted evidence obtained pursuant to its execution at Perez’s trial.
[21] Article 1, Section 11 of the Indiana Constitution does not change our holding.
Although the wording of this provision is “virtually identical to the wording of
the search and seizure provision in the federal constitution, Indiana’s search
and seizure clause is independently interpreted and applied.” Perez, 981 N.E.2d
at 1251. We review the totality of the circumstances and evaluate the
reasonableness of the police conduct. Id.
Generally, the reasonableness of a search or seizure under the
Indiana Constitution turn on the balance of: (1) the degree of
concern, suspicion or knowledge that a violation has occurred;
(2) the degree of intrusion the method of the search or seizure
imposes on the citizen’s ordinary activities; and (3) the extent of
law enforcement needs.
Id. The State has the burden to show that “under the totality of the
circumstances, the intrusion was reasonable.” Id.
[22] The State has met that burden. Assuming the canine sniff also violated the
Indiana Constitution, the search of the interior of Perez’s home did not.3 As
discussed above, officers had substantial legally obtained information, detailed
in the probable cause affidavit, to suspect that a violation of the law had
3
In Perez’s interlocutory appeal we held that the detainment of Perez did not violate the Indiana
Constitution. We apply the law of the case doctrine and do not review that determination.
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occurred. Moreover, they sought and obtained a valid warrant, so the degree of
intrusion into Perez’s home, while significant, is nevertheless lawful. Finally,
the extent of law enforcement needs were substantial, as officers had connected
Perez’s home, via the vehicles, to four controlled buys of cocaine. Thus, the
search of Perez’s home did not violate the Indiana Constitution.
[23] Affirmed.
Mathias, J., and Bradford, J., concur.
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Ignacio Perez v. State of Indiana
Combined Opinion