dissenting.
The majority's approval of the May, 4, 1982 entry, search and seizure compels my dissent.
The defendants correctly contend that all of the evidence seized in the May 4, 1982 entry and search of their motel suite should have been suppressed because the officers executing the search warrant failed to knock and announce their identity and purpose prior to entry. There is evidence that a knock and announcement of police presence was simultaneous with the opening of the door with a passkey. "
One of the entering officers testified as follows:
*76"Q. What position did you take as you were getting ready to serve this warrant?
A. Again, we went to the office and got the key. We could see activity inside but they did not see us, at least I don't think they did. Went to the door and Detective Osborn announced that it was the police, I stuck the key in the door and unlocked it and went in.
Q. You were at the front door?
A. We were at the front door and two guys went to the back.
Q. Did you have any indication that the occupants of that apartment had seen you coming that time?
A. No.
Q. So you got to the front door and you say, 'Open up,' when you got to the front door, is that correct?
A. Correct. We had it pre-arranged that I would unlock the door because I had the key, turn the knob, and Osborn would knock and announce that we were the police and that is what happened. I went to put the key in the lock and knocked and hollered 'police' and went in." Record at 151-152.
"Q. Officer, did you intend to use the passkey whether ... in any case, you intended to use the passkey?
A. Correct.
Q. Had you planned on knocking and announcing and letting the defendants answer the door?
A. No.
Q. It is clear in both cases you weren't really prepared to give them an opportunity to open the door after you announced the authority?
A. Having dealt with them before, they wouldn't open the door. It was not our maiden voyage.
Q. Have you actually personally ever served a search warrant on Norma prior to that?
A. No.
Q. So how do you know that she wouldn't open the door?
A. (inaudible)
Q. So you didn't have any personal knowledge of her opening the door or shutting the door on you in a warrant?
No. Not personally. }
Osborn did knock and announce simultaneously with the passkey. ©
Perfect coordination. >
Perfect coordination?" Record at 155. ©
Such evidence does not bring this case within State and Federal constitutional requirements for lawful searches and seizures. In Payton v. New York (1980) 445 U.S. 573, 594, 100 S.Ct. 1371, 1384, 63 L.Ed.2d 639, the majority of the United States Supreme Court set forth the historical common law underpinning for the "knock and announce" requirement. Quoting from Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194, 195-196 (K.B.1603), the Court said:
"'In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K.'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors; and that appears well by the stat. of Westm. 1. c. 17. (which it but an affirmance of the common law) as hereafter appears, for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it, and that appears by the book in 18 E. 2. Execut. 252. where it is said, that the K.'s officer who comes to do execution, &e. may open the doors which are shut, and break them, if he cannot have the keys; which *77proves, that he ought first to demand them, 7 E. 3.16" 100 S.Ct. at 1383.
It should be noted that even the three dissenters in Payton acknowledged: "At common law, absent exigent cireumstances, entries to arrest could be made only for felony. Even in cases of felony, the officers were required to announce their presence, demand admission, and be refused entry before they were entitled to break doors." 100 S.Ct. 1371, 1395.
An "exigent circumstance" exception exists in Indiana but is restricted to relieving officers from the requirement that they announce their purpose. Davenport v. State (1984) Ind., 464 N.E.2d 1302; Sayre v. State (1984) 3d Dist., Ind.App., 471 N.E.2d 708; Cannon v. State (1980) 3d Dist., Ind. App., 414 N.E.2d 578; Johnson v. State (1973) 2d Dist., 157 Ind.App., 105, 299 N.E.2d 194.
I am persuaded that Indiana has not chosen to deviate from the clear "knock and announce" requirements enunciated in State v. Dusch (1972) 259 Ind., 507, 289 N.E.2d 515. In Dusch, officers executing a search warrant neither knocked nor announced their authority before breaking in the front and rear doors of an apartment. The court left little or no room for interpretation by clearly and suceinetly holding:
"There is absolutely no evidence here which would indicate that the occupant of the house acted in a furtive manner, or that he knew of the presence of the police outside, or that he was in the process of attempting to destroy the' evidence which the police sought, or even that the amount of the drugs to be searched for was so small or so placed that they lent themselves to easy disposal. Apparently the State would have us hold that the mere fact the object of the search was to be drugs would itself justify an unannounced entry. Such an exception to the knock and announce requirement would be overly broad and would be based on the type of objects searched for rather than on the particular cireumstances approach followed by . all of the eight justices in Ker. The mere fact that there are drugs involved in the search cannot be held to create a per se exception to the announcement requirement. Exceptions to the entry requirement must be founded on particularity and not on generality. Such a blanket rule will not do for specific situations which call for differentiation.
We hold therefore that the fact that the object of this search was drugs cannot alone be sufficient to excuse the police from announcing their authority and giving the inhabitants a reasonable opportunity to respond as is required by the Constitution of the United States and the Constitution of the State of Indiana. A method of entry to execute a search warrant which has evolved from our common law and which is contained in the definition of reasonable searches and seizures required by both Constitutions compels great respect from both the police and the courts." 289 N.E.2d at 518.
Ludlow v. State (1974) 262 Ind. 266, 314 N.E.2d 750, is particularly informative when considered in the light of the State's argument here that exigent circumstances permitted the entry into the motel room. In Ludlow, the Court of Appeals, 302 N.E.2d 838, had held that an officer who had knocked, identified himself as a police officer and was denied entry, could make a forcible warrantless entry after hearing sounds of running from inside and fearing the destruction of contraband. Upon transfer, our Supreme Court rejected the State's assertion of exigent cireumstances premised upon a fear that the drugs were easily destructible and held:
"The State's argument here misinterprets the scope of that exception. This Court has already rejected the notion that the nature of the items to be seized ean alone create automatic exceptions to Fourth Amendment safeguards. State v. Dusch (1972) [259 Ind. 507], 289 N.E.2d 515. Moreover, there is no evidence here which would indicate in any way that the people in the house were in the process of destroying the drugs, or were even aware that a raid was immi*78nent. The rationale for the clearly defined exception to the warrant requirement in cases of destruction of evidence is based on the need for quick action because the evidence is actually in the process of being destroyed or is about to be destroyed. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. What the State asks here would result in an extension of the exception far beyond the bounds of its rationale." 314 N.E.2d at 752.
The unmistakable message sent in unbroken sequence from State v. Dusch, supra, to Ludlow v. State, supra, to Davenport v. State, supra, is that the knock and announce rule is the law of Indiana. As earlier noted, although an exception may exist with respect to an announcement of purpose in some instances, the existing law requires Indiana police to knock and identify themselves before entering. The time lapse which may be permitted between the knock-announcement and the entry may vary with the circumstances but there must be a knock and an announcement of identity.
It is clear that the spirit as well as the letter of the rule was violated in the instance before us.
The result obtained by the majority nee-essarily depends upon "exigent cireum-stances." Those exigent circumstances, in turn, necessarily depend upon the suspicion engendered or knowledge obtained by the unlawful entry made by the same police officers on April 21, 1982.
On April 21, entry was obtained without any knock or announcement whatever. The officers merely used a passkey and walked into the motel suite and only thereafter announced their presence. I believe the majority overstates the evidence when it implies that on April 21 Norma Crabtree was posted as a lookout and was intercepted on her way to destroy drugs. Neither do I find any probable cause significance to ' a general reference in the record to a prior occasion or occasions when Norma Crab-tree refused police entry to a different residence.
I might correctly surmise that these defendants are evildoers, and that on May 4 the police had strong reason to believe that contraband would be found behind the eloged and locked doors of that apartment. That surmise, however, does not permit me to concur in an opinion which encourages law officers to effect a clearly illegal entry in order to discover contraband, the knowledge of which is then utilized as probable cause for a "legal" entry, search and seizure.
Neither the Constitution of the United States nor of this State permits law enforcement officials to utilize an unlawful entry and search to provide probable cause for a subsequent entry and search. To do so would emasculate the right against unreasonable searches and seizures. Officers would be encouraged to conduct clearly unconstitutional, destructive, and privacy violative entries if those entries could be used as probable cause to obtain a subsequent warrant or as the exigent circumstances justifying a warrantless entry.
Our case law is quite clear on this point. Evidence seized in a search must be excluded if the probable cause for that search is tainted by prior unlawful conduct. Morris v. State (1980) 272 Ind. 467, 399 N.E.2d 740; Hall v. State (1976) Ind., 346 N.E.2d 584; Pirtle v. State (1975) Ind., 323 N.E.2d 634; Clark v. State (1980) 4th Dist., Ind.App., 401 N.E.2d 773; Stinchfield v. State (1977) 1st Dist., Ind.App., 367 N.E.2d 1150. Evidence of this nature is admissible only if it was obtained by means independent of the prior tainted evidence or information. See Myers v. State (1983) Ind., 454 N.E.2d 861.
In the case before us, the May 4 entry was made without appropriate knock and announcement and was without cognizable exigent circumstances.
The evidence obtained as a result of this entry should have been suppressed. Accordingly, I must vote to reverse the convictions obtained as a result of that evidence.