dissenting, with separate opinion.
I respectfully dissent. As a starting point, I think it critical to remember that this began as a very late-night effort to serve a routine arrest warrant for Nelson Hernandez, who was sought on a charge of auto theft (not a crime of violence or a drug offense), and that it is undisputed that there was no "hot pursuit" or emer-geney here. Further, it appears from the record that Hernandez was relatively well known in the community to the police. The officers knew that in the course of his alleged crime, Hernandez had suffered a leg injury in a crash and was only recently released from the hospital-wearing a full cast and mobile only with the use of two crutches. The record contains no evidence of attempts by the officers to learn the name of Hernandez' aunt, to help narrow the location of her residence. Moreover, they knew that no matter where they located Hernandez, it was going to be in the residence of a third party in that building.
Next, I note the substantial number of facts upon which the officers' testimony differed. Specifically, their testimony differed as to the means by which they gained access to the apartment building, what happened when they were outside the door to Duran's apartment, and their actions upon entering his apartment.
As to their entry to the building, Gem-einhart said that he asked a man near a door to the building whether he knew Hernandez, and the man said he did, and that Hernandez was staying in the apartment upstairs with a green door; Gemeinhart could not remember how the officers had actually gained entry to the building. Haritos said that after knocking on a street-level door for seven to ten minutes, a 6 3" 280-pound "scruffy" looking man "with real long hair" came to the door and opened it, (tr. 19); this man identified a picture shown to him by Gemeinhart as Hernandez, told them he was staying upstairs in the apartment with the green door, and let the officers in the building. According to Maldonado, a 55 10" to 5 11" 200-pound "neat looking" man "approached" the officers outside the building and asked whether he could help them, (tr. 86); when asked about Hernandez, this man indicated that Hernandez was in the apartment upstairs with the green door, and he opened the door to give them access to the building.
Once inside the apartment building, all officers agree that they went directly to the apartment with the green door, without checking any other units for Hernandez. However, as to what happened when they were outside the green door, their accounts again differ. Gemeinhart testified that he knocked and "announce[d], 'police department,'" and "right away, as soon as [he] knocked, 'a voice asked who was there'"; Gemeinhart answered, "the police, open the door,"; and shuffling noises were heard, then silence; Gemeinhart knocked again, and when there was no response, said "It's the police department, open the door. If you don't open the door it will be kicked in"; five minutes after his first knock, he kicks in the door. (Tr. 65, 66). According to Haritos, after Gemein-hart knocked "for a while," someone answered; Gemeinhart asks that the door be opened and is told to "hold on"; Gemein-hart asks for Hernandez, and is told to "hold on"; "walking around" is heard; then Gemeinhart knocks for five to ten *1114more minutes, with silence inside; Gem-einhart says, "Open the door, we need to talk to you" and that they are "looking for" Hernandez; Gemeinhart threatens to kick the door in if it is not opened; after another minute, Gemeinhart kicks the door in. (Tr. 25, 26). Maldonado testified that Gemeinhart first knocked for three to four minutes, saying "police, police"; then a voice asked who was at the door, and he answer, "police"; the voice said, "hold on," and then there was quiet,; one to two minutes later, Gemeinhart kicked the door in. (Tr. 90, 91).
I note that Indiana law provides for a law enforcement officer to "break open" a dwelling door "in order to execute a search warrant, if he is not admitted following an announcement of his authority and purpose." Ind.Code § 35-33-5-7(d) (emphasis added). However, there is no testimony that officers announced their purpose when they knocked on Duran's door, i.e., that they were police officers with a warrant for the arrest of Hernandez. Here, the testimony only establishes that Gem-einhart announced himself as "police." The record suggests that Gemeinhart believed that such an identification was sufficient to justify the forcible entry. Specifically, Gemeinhart testified that his forcible entry was based on the following: Hernandez mother told him that he was living in that neighborhood; Maldonado had recently dropped him off at that building; an unknown man at or near the building told him that Hernandez lived on the second floor apartment with a green door; and
the simple fact that when I knocked on the door and the subject said, 'who is it? and I said, 'police, he would not open the door and I ha[d] been serving warrants long enough to know that if you're not wanted by the police, you should open the door if you don't have anything to hide or anyone to hide.
(Tr. 70).
Next, I note the uncontradicted evidence that when they entered the apartment after Gemeinhart had kicked in the door, all three officers had their guns drawn. However, as to what happened once they entered the apartment, accounts again differ. According to Gemeinhart, he stayed with Duran while Haritos and Maldonado looked for Hernandez, and Haritos reported that "he found what he believed to be crack cocaine sitting on the window sill of the bedroom." (Tr. 69). Haritos testified that Gemeinhart remained with Duran while he and Maldonado looked through the small apartment for Hernandez, and in the bedroom he saw "a clear plastic bag with a white powdery substance" which he believed to be cocaine; after he and Maldonado confirmed that Hernandez was not in the apartment, he went to the bedroom "and retrieved it." (Tr. 34). According to Maldonado, he stayed with Duran, while Gemeinhart and Haritos looked for Hernandez; he heard them say "that they had narcotics, possible narcotics in plain view"; and the possible contraband "was pointed out to [him] on top of a dresser." (Tr. 94, 95).
As to the final event of the evening, all the officers agree that they located Hernandez at the first apartment door they knocked on after kicking in Duran's door and subsequently arresting him. They had arrested Duran based on finding some possible narcotic substance at some location in his apartment.
When I review the uncontradicted evi-denee (that there were no exigent cireum-stances, and the particulars concerning Hernandez and why he was being sought) and the substantial conflicts in the testimony of the officers, I cannot find that the totality of the cireumstances justify the *1115officers' entry of Duran's apartment. Steagaild warned that allowing "the police, acting alone and in the absence of exigent circumstances" to "decide when there is sufficient justification for searching the home of a third party for the subject of an arrest warrant" would "create a significant potential for abuse." 451 U.S. at 215, 101 S.Ct. 1642. Further, Steagaid concluded that using an arrest warrant "as authority to enter the homes of third parties" suffered from the infirmity of "leav{ing] to the unfettered discretion of the police the decision as to which particular homes should be searched," and that "the Framers of the Fourth Amendment" would not have "condoned such a result." Id.
In its argument to the trial court, the State asserted that entry was warranted because Hernandez might be escaping, or destroying evidence-such as keys, or documentation, or tools. However, it is undisputed that Duran's apartment was on the second floor, and the officers knew that Hernandez had a full cast and required two crutches to move about-thereby limiting his ability to escape from a second floor apartment. Further, I cannot find the possible destruction of evidence related to a charge of auto theft is so paramount as to supersede the longstanding history of Fourth Amendment protection against the invasion of one's own home.
Finally, I cannot accept that there was consent by Duran to the officers search for Hernandez once they were inside-given the uncontradicted evidence that his door had just been kicked in, and all three officers had their guns drawn. I note that Gemeinhart, the lead officer and in charge of the officers' efforts to serve the arrest warrant, apparently did not believe any consent by Duran was needed. Gemein-hart testified that "after [he] had broken the door down, with enough understanding that [he] believed the subject was inside, we were going to search anyway for the subject that was wanted on the arrest warrant or that we had an arrest for." (Tr. 76).
I appreciate the majority's careful attention to precedent in reaching the result it has. However, I am deeply troubled by testimony indicating that police officers believe that when the resident of a dwelling does not open a door, after having simply heard the announcement that "police" are outside, the officers may kick in that door to gain entry. My reading of the facts presented to the trial court in this case lead me to strongly believe that Duran's motion to suppress should have been granted.