Brown v. State

MATHIAS, J.,

dissenting.

I respectfully dissent from the majority's conclusion that the knock and talk investigation and resulting search of Brown's residence were reasonable and not in violation of Article 1, Section 11 of the Indiana Constitution.2

As our court has observed, the knock and talk procedure "pushes the envelope and can easily be misused." Hayes v. State, 794 N.E.2d 492, 497 (Ind.Ct.App.2003), trans. demied. "Knock and talk might more aptly be named knock and enter, because it is usually the officer's goal not merely to talk but to conduct a warrantless search of the premises." Id. "[WJhile the knock and talk procedure is not necessarily unlawful, it is a dangerous short-cut around the bedrock requirement that police have probable cause to enter a home." Kendall v. State, 825 N.E.2d 439, 460 (Ind.Ct.App.2005) (Najam, J., dissenting), aff'd on other grounds in part and summarily aff'd in part by 849 N.E.2d 1109 (Ind.2006).

The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the cireumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). Although there may be other relevant considerations under the cireumstances, the reasonableness of a search or seizure balances: 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. at 361.

In this case, there is seant evidence in the record as to the degree of concern, suspicion or knowledge on the part of the investigating officers that Brown possessed methamphetamine at his residence. When Green was arrested, he did not indicate that he had obtained methamphetamine from Brown. Officer Debbie McDonald testified that a "concerned citizen" provided information about Green "who was the person we were investigating," and the citizen also believed that Green obtained the methamphetamine -from Brown. Tr. pp. 4-5. Linton Police Officer Paul Clark admitted, "we didn't have anything to go on. We were, to put it in layman's terms, taking a crap shot to get into his house because we thought we had an opportunity to do so." Tr. p. 41.

It is at this juncture that I part company with the majority. I simply do not see how a "crap shot" amounts to a reasonable degree of concern, suspicion or knowledge that criminal activity has occurred under the requirements of Litchfield. All that the officers had as reason for their early morning visit to Brown's home was one, uncorroborated statement from a "concerned citizen." This is a far different situation from Traylor v. State, 817 N.E.2d 611, 614 (Ind.Ct.App.2004), trams. denied, where the law enforcement visit was based on an anonymous tip reporting the odors of ether and anhydrous ammonia, which are part of the methamphetamine manufacturing process, emanating from a near*1264by mobile home. It is also a far different situation from VanWinkle v. State, 764 N.E.2d 258, 260-61 (Ind.Ct.App.2002), trams. denied, where the law enforcement visit was the result of three different calls over ten days by two credible callers reporting the odor of ether emanating from a nearby mobile home.

Nevertheless, in the case before us, four officers arrived at Brown's residence in three squad cars at 2:35 a.m. Brown, who is hearing impaired, stated he was asleep when the officers arrived. He testified that he thought "somebody was trying to kick [the door] in because they was hittin' it so hard." Tr. p. 201. The officers did not advise Brown at any time that he had the right to refuse entry into his home.

The degree of intrusion in this case was very high. Four officers, in three squad cars, arrived at Brown's home at 2:85 a.m. The officers knocked on the door so hard that Brown, who was asleep and is hearing impaired, thought someone was trying to kick in his door. I do not believe that a reasonable person, roused from sleep and faced with these intimidating cireum-stances, would feel free to refuse the officers' request to search. See Hayes, 794 N.E.2d at 497 ("[Rlesidents of a home are not likely to deny a police officer's request to enter, either because they are ignorant of the law or are simply 'too stunned by the cireumstances to make a reasoned decision about whether or not to consent to a warrantless search{[.] ") (citation omitted). In contrast, the Traylor law enforcement visit took place at an unspecified time "in the early morning," and the VanWinkle visit occurred at about 1:00 p.m. Neither visit awakened the occupants of the respective mobile homes.

The majority acknowledges that "the officers' act of knocking on Brown's door in the middle of the night was a significant intrusion on Brown's ordinary activities and the officers' suspicion of Brown's drug involvement was, at the time of the knock and talk, minimally supported." Slip op. at 9. Yet, the majority concludes that "law enforcement needs" weigh in favor of concluding that the search was reasonable under Article 1, section 11.

The State argues that "the police had to act quickly because [Brown] could have disposed of the evidence." Appellee's Br. at 11. However, the police did not have any reasonable grounds to believe that Brown had methamphetamine or other narcotics in his home. They merely had a suspicion that Brown might have been supplying methamphetamine to Green. While I acknowledge the police officers' justifiable need to investigate suspicion of nareoties activity, the officers may not conduct their investigation in a manner that infringes on the suspect's rights under Article 1, Seetion 11 of the Indiana Constitution. In contrast again, in both the Truylor and VanWinkle cases, before the law enforcement officers involved initiated a "knock and talk," they had independently confirmed the drug manufacturing odors that they had received complaints about.

When we expect a drowsy citizen to stand up to four armed officers who knock at the front door in the middle of the night without a search warrant, I believe we begin to establish a culture of general distrust of law enforcement and its motives that is corrosive to civil society. Accordingly, I strike the Litchfield balance in favor of Brown and, more iinportantly, in favor of innocent citizens who are likewise awakened in their homes by the demanding knock and voice of law enforcement at their doors in the middle of the night. If "law enforcement needs" prevail under circumstances like these, the greater right to privacy Hoosiers enjoy under Article 1, Section 11 of the Indiana Constitution, see *1265Brown v. State, 653 N.E.2d 77 (Ind.1995), is ephemeral, if it exists at all.

For all of these reasons, I conclude that the officers' knock and talk investigation at Brown's residence was unreasonable under Article 1, Section 11 of the Indiana Constitution, and that therefore, Brown's subsequent consent to search was involuntary.

. However, I agree that the knock and talk investigation and search of Brown's residence did not violate Brown's rights under the Fourth Amendment.