Lacey v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Harold W. Myers Gregory F. Zoeller
Wyss, Morgan & Myers Attorney General of Indiana

P. Stephen Miller George P. Sherman
Fort Wayne, Indiana Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the FILED
Indiana Supreme Court May 10 2011, 10:03 am

_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 02S05-1010-CR-601

CORNELIUS TYRONE LACEY, SR., Appellant (Defendant below),

v.

STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________

Interlocutory Appeal from the Allen Superior Court, No. 02D04-0812-FB-222
The Honorable John F. Surbeck, Jr., Judge
_________________________________

On Transfer from the Indiana Court of Appeals, No. 02A05-0910-CR-562
_________________________________

May 10, 2011

Dickson, Justice.

In this interlocutory appeal, the defendant challenges the trial court's denial of his motion
to suppress evidence obtained from the execution of a search warrant by police forcing their way
into his residence without first knocking and announcing their presence. The Court of Appeals
reversed. Lacey v. State, 931 N.E.2d 378 (Ind. Ct. App. 2010). We granted transfer and hold
that the Indiana Constitution does not require prior judicial authorization for the execution of a
warrant without knocking and announcing when justified by exigent circumstances known by
police when the warrant was obtained. Because judicial officers may issue advance authoriza-
tions for police to bypass the knock and announce requirement, however, the better police prac-
tice is to minimize legal uncertainty by seeking such advance approval when supported by facts
known when the warrant is sought.

Co-defendants Cornelius Lacey and Damion Wilkins are each charged with Unlawful
Possession of a Firearm by a Serious Violent Felon and Possession of Marijuana. Additionally,
Lacey is charged with Maintaining a Common Nuisance. The evidence to support these charges
was obtained as a result of a police search of Lacey's residence in Fort Wayne, Indiana, pursuant
to a search warrant that was executed by police officers without first knocking and announcing
their presence. The trial court denied the defendant's motion to suppress evidence but authorized
an interlocutory appeal of its ruling, and the Court of Appeals accepted jurisdiction. Ind. Appel-
late Rule 14(B).

The defendant's interlocutory appeal argues in the alternative that (a) the search warrant
was not supported by probable cause, and (b) even if the warrant was valid, it was executed
without compliance with the knock and announce requirement in violation of state constitutional
law. Finding probable cause for the issuance of the search warrant of the defendant's residence,
the Court of Appeals rejected the first argument but concluded that the officers' decision in this
case to enter the residence without knocking and announcing their authority violated the Search
and Seizure Clause of the Indiana Constitution1 and that suppression of the resulting evidence
was the appropriate remedy.2 We summarily affirm the Court of Appeals as to the first issue, the
sufficiency of probable cause for the issuance of the warrant. Ind. App. R. 58(A)(2).

As to the remaining issue, the manner of execution of the warrant, the defendant's argu-
1
Virtually mirroring the language in the Fourth Amendment to the United States Constitution,
Article 1, Section 11 of the Indiana Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against un-
reasonable search or seizure, shall not be violated; and no warrant shall issue, but upon prob-
able cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the person or thing to be seized.
2
The defendant seeks relief only under the Indiana Constitution, noting that federal Fourth
Amendment jurisprudence does not require the exclusion of evidence following the failure of police to
knock and announce. See Hudson v. Michigan, 547 U.S. 586, 590–602, 126 S. Ct. 2159, 2163–70, 165 L.
Ed. 2d 56, 64–71 (2006).

2
ment on appeal contends that the exigent circumstances asserted by the State to justify the "no-
knock" entry were known when the warrant was sought but were not provided to the issuing ma-
gistrate, and the police neither sought nor received explicit authorization from the magistrate to
dispense with the knock and announce procedure. While asserting that Indiana Code § 35-33-5-
7(d) provides for a knock and announce requirement, the defendant acknowledges that Indiana
law permits the execution of a warrant without an announcement of presence and purpose if ex-
igent circumstances exist. The defendant's interlocutory appeal does not argue that the factors
actually relied on by the police were inadequate exigent circumstances to justify the no-knock
entry but rather that they should have been previously presented to a magistrate and a no-knock
warrant obtained.

The State responds that the knock and announce procedure is not absolute and that the
no-knock entry here was justified because of the concern for police officer safety after police
thoughtfully considered the two co-defendants' histories including an arrest for criminal reck-
lessness, a conviction for dealing in cocaine, a bond revocation warrant that indicated Lacey may
be armed, and a conviction for armed robbery and resisting arrest.3 The decision whether to
knock and announce, the State argues, must be made by police considering the circumstances at
the time a warrant is executed, not in advance by a magistrate when issuing the warrant.

This Court has long recognized that the Indiana Constitution's provision dealing with
searches and seizures requires "that the police knock and announce their authority before con-
ducting a search of a dwelling." State v. Dusch, 259 Ind. 507, 512, 289 N.E.2d 515, 517 (1972).
This requirement, however, "is not to be adhered to blindly regardless of the particular circums-
tances confronting the authorities at the time the search is to be conducted." Id. In Dusch, this
Court noted that such requirement may not apply when the facts present sufficient exigent cir-
cumstances. Id. at 512–13, 289 N.E.2d at 518. Subsequent Indiana appellate decisions have ap-
plied Dusch to find that police should knock and announce their authority before conducting a
search; such procedure is not absolute, being subject to exigent circumstances; and reasonable-

3
While asserting that the arresting officers decided to serve the warrant in a no-knock fashion,
the State also asserts that immediately before breaking down the door and entering the defendant's resi-
dence, one of the officers yelled, "Police, we have a search warrant, open the door." Appellee's Amended
Br. at 8.

3
ness of police conduct is the touchstone for consideration. See Moran v. State, 644 N.E.2d 536
(Ind. 1994); Davenport v. State, 464 N.E.2d 1302 (Ind. 1984); Beer v. State, 885 N.E.2d 33 (Ind.
Ct. App. 2008), trans. not sought; Willingham v. State, 794 N.E.2d 1110 (Ind. Ct. App. 2003),
trans. not sought; Crabtree v. State, 479 N.E.2d 70 (Ind. Ct. App. 1985), trans. not sought; Can-
non v. State, 414 N.E.2d 578 (Ind. Ct. App. 1980), trans. not sought.

In recent years, this Court has expressed that "[t]he legality of a governmental search un-
der the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct
under the totality of the circumstances." Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005)
(citing Moran, 644 N.E.2d at 539). To determine whether a residential entry violated Article 1,
Section 11, we apply a "totality-of-the-circumstances test to evaluate the reasonableness of the
officer's actions." Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). A more elaborate explanation
and methodology for evaluating such reasonableness is provided in Litchfield:

In sum, although we recognize there may well be other relevant considerations
under the circumstances, we have explained reasonableness of a search or seizure as
turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a vi-
olation 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.

824 N.E.2d at 361.

The defendant directs our attention to the statutory provision related to the knock and an-
nounce requirement, Indiana Code § 35-33-5-7(d), which provides:

A law enforcement officer may break open any outer or inner door or window in or-
der to execute a search warrant, if he is not admitted following an announcement of
his authority and purpose.

This provision applies to search warrants. Ind. Code § 35-33-5-7(a). There is a parallel statutory
provision for arrest warrants. It provides, in relevant part:

A law enforcement officer may break open any outer or inner door or window in or-
der to execute an arrest warrant, if he is not admitted following an announcement of
his authority and purpose.

4
Ind. Code § 35-33-2-3(b). In the context of the former provision regarding search warrants, the
Court of Appeals in Beer not only held that Indiana law permits no-knock warrants but also em-
phasized that the statute does not "prohibit entry without announcing the law enforcement offic-
er's authority and purpose when there are exigent circumstances or when it would be dangerous
to officers or others to make such an announcement." 885 N.E.2d at 42. The logic of this obser-
vation applies equally to the execution of arrest warrants. As noted in Beer, "[t]he legislature has
made it clear that execution of a warrant cannot be frustrated by refusal of entry or silence." Id.

The major thrust of the defendant's argument is that the Search and Seizure Clause in Ar-
ticle 1, Section 11 should be interpreted to require law enforcement to obtain prior express autho-
rization from the judicial officer issuing the warrant if the grounds for bypassing the knock and
announce procedure are based solely upon facts known when the warrant is sought. The use of
no-knock warrants has been previously approved. Id. at 47. But Indiana jurisprudence has not
confronted whether police must obtain no-knock warrants when justified solely by information
known at the time of warrant application.

Other jurisdictions have addressed the use of no-knock warrants. They are permitted in the
federal courts.

The practice of allowing magistrates to issue no-knock warrants seems entirely rea-
sonable when sufficient cause to do so can be demonstrated ahead of time. But . . . a
magistrate's decision not to authorize a no-knock entry should not be interpreted to
remove the officers' authority to exercise independent judgment concerning the wis-
dom of a no-knock entry at the time the warrant is being executed.

Richards v. Wisconsin, 520 U.S. 385, 396 n.7, 117 S. Ct. 1416, 1422 n.7, 137 L. Ed. 2d
615, 625 n.7 (1997). Judicial opinions in Florida, Oregon, and Virginia have declared that
a magistrate lacks the authority to issue a no-knock warrant and that the determination to
bypass the knock and announce procedure is to be made only by the executing officers at
the time of execution.4 Ten states, including Indiana, have recognized judicially the validi-

4
See State v. Bamber, 630 So. 2d 1048 (Fla. 1994); State v. Arce, 83 Or. App. 185, 730 P.2d
1260 (Or. Ct. App. 1986); Fenner v. Dawes, 748 F. Supp. 404 (E.D. Va. 1990).

5
ty of the practice of magistrates issuing no-knock warrants.5 But we find only one jurisdic-
tion whose opinions require police to inform the issuing magistrate of the circumstances
believed to justify an unannounced entry and to obtain specific advance authorization for
such entry. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000).6 Statutory provisions in
twelve states authorize the issuance of no-knock warrants.7 Several of these statutes ap-
pear to authorize the execution of a warrant by forceful entry into a residence only in the
event of either of two conditions: (a) refusal of admittance after announcement of police
purpose, or (b) exigent circumstances if a no-knock entry is specifically authorized by the
judicial officer. See, e.g., NEB. REV. STAT. § 29-411; N.Y. CRIM. PROC. LAW § 690.50;
N.D. CENT. CODE § 29-29-08; OKLA. STAT. tit. 22, § 1228; UTAH CODE ANN. § 77-23-210.
We do not find case authority from these jurisdictions addressing whether such statutes
prohibit police in the absence of such advance judicial authorization from executing a war-
rant in a no-knock fashion due to exigent circumstances.

As noted above, the touchstone for applying Indiana's Search and Seizure Clause is rea-
sonableness under the totality of the circumstances. In formulating the rule for Indiana, we are
informed by the prevalent national view expressed in judicial decisions that prior judicial autho-
rization based on information known when a warrant is obtained is not required for unannounced
police entries. As noted above, in the review of claims asserting that a residential entry violated
the Indiana Constitution's Search and Seizure Clause, courts apply a totality-of-the-

5
See Beer, 885 N.E.2d 33; State v. Ballew, 290 Ga. App. 751, 660 S.E.2d 732 (Ga. Ct. App.
2008); State v. Creason, 33 Kan. App. 2d 114, 98 P.3d 985 (Kan. Ct. App. 2004); Commonwealth v. San-
tiago, 452 Mass. 573, 896 N.E.2d 622 (Mass. 2008); State v. Wasson, 615 N.W.2d 316 (Minn. 2000);
Caldwell v. State, 938 So. 2d 317 (Miss. Ct. App. 2006); State v. Jones, 179 N.J. 377, 846 A.2d 569 (N.J.
2004); State v. Perry, 178 S.W.3d 739 (Tenn. Crim. App. 2005); Chevis v. State, No. 05-04-00142-CR,
2005 Tex. App. LEXIS 2949 (Tex. App. Apr. 19, 2005); State v. Larson, 215 Wis. 2d 155, 572 N.W.2d
127 (Wis. Ct. App. 1997).
6
It should be noted, however, that Minnesota does not mandate such judicial pre-approval for an
unannounced police entry when "necessary for a safe and successful execution of the warrant." Wasson,
615 N.W.2d at 320 n.2.
7
See ARIZ. REV. STAT. ANN. § 13-3915; COLO. REV. STAT. § 16-3-303; 725 ILL. COMP. STAT.
5/108-8; ME. REV. STAT. ANN. tit. 15, § 55 and ME. R. CRIM. P. 41(i); MD. CODE ANN., CRIM. PROC. § 1-
203; NEB. REV. STAT. § 29-411; N.Y. CRIM. PROC. LAW § 690.50; N.D. CENT. CODE § 29-29-08; OHIO
REV. CODE ANN. §§ 2935.12, 2933.231; OKLA. STAT. tit. 22, § 1228; S.D. CODIFIED LAWS § 23A-35-9;
UTAH CODE ANN. § 77-23-210.

6
circumstances test to evaluate reasonableness. Duran, 930 N.E.2d at 17. We decline to superim-
pose upon this standard a constitutional requirement for police to seek a no-knock warrant when
it appears justified by facts known when the warrant is obtained.

While inherently impossible to anticipate the myriad of circumstances that could consti-
tute exigent circumstances justifying a no-knock entry, such circumstances have been recognized
when the facts give police reasonable suspicion that knocking and announcing their presence
would permit "escape or the destruction of evidence," Davenport, 464 N.E.2d at 1305 (quoting
Ker v. California, 374 U.S. 23, 47, 83 S. Ct. 1623, 1636, 10 L. Ed. 2d 726, 746 (1963)), or
"would be dangerous, futile, or inhibit the effective investigation of the crime," Beer, 885 N.E.2d
at 44 (citing Richards, 520 U.S. at 394, 117 S. Ct. at 1421, 137 L. Ed. 2d at 624). In Beer, the
Court of Appeals determined that there was a reasonable suspicion that knocking and announc-
ing their presence before executing a warrant would be dangerous to the police based on the
presence of weapons and threats of violence against police. Id. at 47. Whatever arguably ex-
igent factors may be known by police when a warrant is obtained, their significance at the mo-
ment the warrant is executed may vary considerably due to the then-existing circumstances. The
reasonableness of a decision by police to enter without first knocking and announcing their pres-
ence must be evaluated in light of the totality of the circumstances at the time of such entry.

In conclusion, we hold that Article 1, Section 11 of the Indiana Constitution, which pro-
hibits unreasonable search or seizure, does not require prior judicial authorization for the no-
knock execution of a warrant when justified by exigent circumstances, even if such circums-
tances are known by police when the warrant is obtained. Rather, courts will assess the reasona-
bleness of entry based on the totality of the circumstances at the time the warrant was served.
Constitutional uncertainty may be minimized when police, knowing in advance of the need to
execute a warrant without complying with the knock and announce requirement, present the
known facts when seeking the warrant and obtain express judicial authorization for a no-knock
entry. This is certainly the better practice.

This appeal does not argue that the factors actually relied on by the police were inade-
quate exigent circumstances to justify the no-knock entry, and thus such claim is not presented.

7
 As to the defendant's contention that police should have presented known supporting
facts and obtained an advance judicial authorization for the no-knock entry, we hold to the con-
trary, as explained above. As to all other issues, we summarily affirm the decision of the Court
of Appeals. The trial court's denial of the defendant's motion to suppress is affirmed.

Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.

8