State v. Straub

OPINION

ROBB, Judge.

The State brings this interlocutory appeal of the trial court’s order granting Joseph Straub’s motion to suppress his statements to the police. We reverse.

Issue

The State raises the following restated issue for our review: whether the trial court properly granted Straub’s motion to suppress.1

Facts and Procedural History

The facts reveal that around 3:40 a.m. on January 26, 1999, Officer Grable was sitting in his patrol car when he observed a truck with an attached snowplow closely following another truck. Thereafter, the driver of the lead trunk informed Officer Grable that the individual driving the truck with the attached snowplow was driving erratically and had repeatedly dropped the snowplow on the road causing sparks as the blade grazed the pavement. Officer Grable then searched for the truck but did not activate his sirens or emergency lights. A short time later, Officer Grable observed the truck traveling away from him without any lights. He attempted to follow the vehicle but lost sight of the truck as it turned onto another street. Thereafter, Officer Grable tried to cut the truck off but the vehicle never emerged from the street upon which Officer Grable had earlier seen the truck travel.

Subsequently, Officer Grable saw Straub run down a hill, lose his footing, and fall to the ground near the area where he had earlier lost sight of the truck. Officer Grable yelled “stop, police,” but Straub got up from the ground and continued to run away from him. Straub continued to ignore Officer Grable’s audible commands to stop and eventually entered an apartment later determined to be his residence. Officer Grable, who was not far behind, drew his weapon, entered the apartment, and ordered Straub to come outside. As Straub emerged from the apartment Officer Grable noticed a strong odor of alcohol emanating from Straub. Subsequently, Straub was placed in handcuffs and transported to the local jail where a chemical breath test revealed that he had a .17% blood alcohol content.

Consequently, the State charged Straub with operating a motor vehicle while intox*597icated2 and operating a motor vehicle while intoxicated with a prior conviction of operating while intoxicated.3 On January-26, 2000, Straub filed with the trial court a motion to suppress his post-arrest statements to the police. Following a hearing, the trial court granted Straub’s motion to suppress. Subsequently, the State filed a motion to correct error with the trial court, a motion that was later denied. This interlocutory appeal ensued pursuant to Indiana Code section 35-38^-2.

Discussion and Decision

The State contends that the trial court abused its discretion in granting Straub’s motion to suppress. We agree.

I. Standard of Review

In reviewing a motion to suppress, we do not reweigh the evidence, but determine if there is substantial evidence of probative value to support the trial court’s ruling. Carter v. State, 686 N.E.2d 1254, 1258 (Ind.1997). We look to the totality of the circumstances and consider all uncon-troverted evidence together with conflicting evidence that supports the trial court’s decision. Haviland v. State, 677 N.E.2d 509, 513 (Ind.1997).

II. The Fourth Amendment

We are presented with the question of whether Officer Grable was justified in entering Straub’s residence without a warrant. The Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution protect citizens from state intrusions into their homes. The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, section 11 of the Indiana Constitution mirrors the Fourth Amendment to the U.S. Constitution. It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). A principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter a residence for purposes of search or arrest. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Thus, searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

However, “on occasion the public interest demands greater flexibility than is offered by the constitutional mandate” of the warrant requirement. Rabadi v. State, 541 N.E.2d 271, 274 (Ind.1989). Although the warrant requirement is the rule, exceptions to it exist. Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind.1994). These exceptions are “few in number and carefully delineated.” United States District Court, 407 U.S. at 318, 92 S.Ct. 2125. Exigent circumstances have been found: (1) where a suspect is fleeing or likely to take flight in order to avoid arrest; (2) where incriminating evidence is in jeopardy of being destroyed or removed unless an immediate arrest is made; (3) where a violent crime has occurred and entry by *598police can be justified as means to prevent further injury or to aid those who have been injured; and (4) in cases that involve hot pursuit or movable vehicles. Snellgrove v. State, 569 N.E.2d 337, 340 (Ind.1991). The burden is on the prosecution to demonstrate exigent circumstances to overcome the presumption of unreasonableness that accompanies all warrantless home entries. Payton, 445 U.S. at 586, 100 S.Ct. 1371.

The arrest of a person is quintessentially a seizure. See id. at 585, 100 S.Ct. 1371. It has long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause. See United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). However, the United States Supreme Court has drawn the line at the entrance of a dwelling, holding that the Fourth Amendment prohibits the police, absent exigent circumstances, from making warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest even when the police have probable cause to do so. Payton, 445 U.S. at 576, 100 S.Ct. 1371. Indeed, “[t]here is no question that police are required by the federal constitution to obtain a warrant to arrest a suspect who hunkers down inside his home and refuses to leave or answer the door.” Cox v. State, 696 N.E.2d 853, 858 (Ind.1998). With regard to minor offenses, the Court has stated that the presumption of unreasonableness which attaches to the warrantless entry by the police into a home is difficult to rebut, and that the government should usually be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. Welsh, 466 U.S. at 750, 104 S.Ct. 2091. The validity of a warrantless arrest is determined by the facts and circumstances of each case. Tata v. State, 486 N.E.2d 1025, 1028 (Ind.1986).

A. Reasonable Suspicion

Our initial inquiry is to determine if Officer Grable had reasonable suspicion to conduct an investigatory stop of Straub as he viewed him running down a hill. An investigatory stop of a citizen by a police officer does not violate that citizen’s constitutional rights where the police officer has a reasonable articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Probable cause is not necessary. Id. What constitutes reasonable suspicion is determined on a case-by-case basis, and the totality of the circumstances is considered. Baran v. State, 639 N.E.2d 642, 644 (Ind.1994); Platt v. State, 589 N.E.2d 222, 226 (Ind.1992). Reasonable suspicion entails some minimum level of objective justification for making a stop; something more than an inchoate and unparticularized suspicion or hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. Cardwell v. State, 666 N.E.2d 420, 422 (Ind.Ct.App.1996), trans. denied. In judging the reasonableness of Terry stops, courts must strike a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law enforcement officers. Stalling v. State, 713 N.E.2d 922, 924 (Ind.Ct.App.1999). The State has legitimate concerns in deterring driving while intoxicated. See State v. Garcia, 500 N.E.2d 158, 161 (Ind.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987).

Prior to seeing Straub running down the hill, Officer Grable had observed the truck with an attached snowplow closely following another vehicle. R. 100. Shortly thereafter, a concerned citizen informed Officer Grable that the truck with *599the snowplow was driving erratically and that the driver was obviously drunk. R. 111. Anonymous or unidentifiable informants can supply information that gives police reasonable suspicion. Bogetti v. State, 723 N.E.2d 876, 879 (Ind.Ct.App.2000). “A tip will be deemed reliable when an individual provides specific information to the police officers such as vehicle description.” Id. (citing Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind.1997)). It is apparent from the record that the concerned citizen gave a reliable description of the truck to Officer Grable. R. 114. Furthermore, the concerned citizen’s identity was known to Officer Grable. R. 110. Thus, the information Officer Grable received from the concerned citizen provided Officer Grable with reasonable suspicion to conduct a traffic stop of the truck with the snow blade.

However, Officer Grable was unable to affect a traffic stop of the vehicle while it was in motion or occupied by the driver. After receiving the tip, Officer Grable located the truck and observed it travel down the street without taillights. R. 117. This bolstered Officer Grable’s reasonable suspicion that the driver of the truck with the snowplow was impaired or intoxicated. He was unable to accelerate to high speeds to catch the vehicle because of the icy road conditions. R. 118. Officer Grable lost sight of truck with the snowplow as he attempted to cut the truck off by traveling down a parallel street. R. 122. While searching the area where he had last seen the truck, he observed Straub running down a hill. R. 125.

The United States Supreme Court has recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984). The Court has recently held that unprovoked flight from a police officer may give rise to reasonable suspicion sufficient for purposes of a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Headlong flight is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is suggestive of such. Id. “Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police question.” Id. Straub’s unprovoked flight surely heightened Officer Grable’s reasonable suspicion that criminal activity was afoot.

We believe that it was reasonable for Officer Grable to assume that Straub was the individual who had recently driven the truck with the snowplow considering: (1) the time of the incident, around four o’clock in the morning; (2) the few number of people out and about; (3) the close proximity of Straub to where Officer Grable had last seen the truck with the snowplow; and (4) Straub’s act of running. We have no doubt that Officer Grable believed that Straub extinguished the lights of his truck in order to evade Officer Grable and that Straub had ditched the truck and fled on foot in an effort to further cloak his retreat. Therefore, Officer Grable had reasonable suspicion to conduct an investigatory stop of Straub as he ran down the hill. However, our inquiry does not end here because Straub was not apprehended in a public place, but rather in his residence.

B. Warrantless Entry into a Home

An individual’s home traditionally has been regarded as the center of a person’s private life, the bastion in which one has a legitimate expectation of privacy protected by the Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868, 883, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). *600The concept that a person’s home is regarded as his or her castle has not lost any vitality. See Wyman v. James, 400 U.S. 309, 339, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Therefore, the physical entry of a police officer into a home without a warrant for the purpose of search and seizure is presumptively unreasonable. Payton, 445 U.S. at 586, 100 S.Ct. 1371. We must now examine the facts and circumstances of the present case to determine whether Officer Grable’s warrantless entry into Straub’s residence was proper.

After observing Straub run down the hill, Officer Grable ordered him to halt, but Straub ignored the officer’s commands and continued to flee. R. 127. Officer Grable uttered more audible commands to Straub to halt but he continued to run until he entered his apartment and shut the door. R. 131. Officer Grable then entered the apartment, ordered Straub out, and ultimately apprehended him. R. 136. It is clear that Officer Grable had probable cause to arrest Straub for resisting law enforcement after Straub refused his audible commands to halt. See Ind. Code § 35 — 44—3—33(a)(3). However, we believe that Officer Grable’s primary objective in pursuing Straub was to detain him in order to question him regarding his movements that night and if warranted, administer an alcohol test to determine impairment or intoxication. Officer Grable obtained the probable cause to arrest Straub for fleeing law enforcement during his attempt to conduct an investigatory stop of Straub that was thwarted by his fleeing from the police officer. Thus, the probable cause for the arrest was a byproduct of the attempted investigatory stop and not the primary reason for Officer Grable’s decision to enter Straub’s apartment and detain him. Absent the suspicion of the alcohol violation, Officer Grable would not have been justified in entering Straub’s home.

We believe that Officer Grable was justified in entering Straub’s home in order to preserve evidence of Straub’s blood alcohol content. An exception to the warrant requirement permits the State to enter a home when government agents believe that evidence may be destroyed or removed before a search warrant is obtained. Sayre v. State, 471 N.E.2d 708, 714 (Ind.Ct.App.1984), cert. denied, 475 U.S. 1027, 106 S.Ct. 1226, 89 L.Ed.2d 336 (1986). The police must have an objective and reasonable fear that the evidence is about to be destroyed. Harless v. State, 577 N.E.2d 245, 247 (Ind.Ct.App.1991). Moreover, exigent circumstances cannot be created by police officers to justify warrantless searches. State v. Williams, 615 N.E.2d 487, 488 (Ind.Ct.App.1993). We have previously held “the threat of the ‘metabolic destruction of evidence’ of a suspect’s intoxication, i.e., the bodily absorption of alcohol in the bloodstream” to be exigent circumstances. Zimmerman v. State, 469 N.E.2d 11, 17 (Ind.Ct.App.1984) (citing Shultz v. State, 417 N.E.2d 1127, 1138 (Ind.Ct.App.1981)).

As we have previously mentioned, Officer Grable had reasonable suspicion that Straub was the driver of the truck with an attached snowplow blade and that he had operated the vehicle while impaired or intoxicated. However, Officer Grable was unable to effect a Terry stop due to Straub’s active fleeing from the police officer. It wasn’t until Officer Grable had detained Straub and questioned him that he obtained probable cause to believe that *601Straub was operating a vehicle while intoxicated. See R. 136-38.

During the entire incident, the progression of time naturally began to dissipate the alcohol in Straub’s body. If Officer Grable was forced to obtain a warrant to enter the residence, it is entirely possible that Straub no longer would have been impaired or intoxicated. Although there was not a fear that Straub would actively destroy the evidence, there was an objective and reasonable fear that time would destroy evidence of Straub’s impairment or intoxication.

The facts of this case are markedly different than those of Timmons v. State, 723 N.E.2d 916 (Ind.Ct.App.2000), on reh’g 734 N.E.2d 1084 (Ind.Ct.App.2000). In Tim-mons, the police received a tip that the defendant had been involved in two hit- and-run accidents. 723 N.E.2d at 918. The police later determined that the car parked in front of the defendant’s residence matched the description of the hit- and-run vehicle. Id. The defendant’s sister confirmed that he was inside the residence but refused to come out. Id. We held that the police were required to obtain a valid warrant before entering the residence to arrest Timmons for the two misdemeanor offenses. Id. at 920. On rehearing, we stated that the police did not discover that the defendant was intoxicated until they entered the residence and subjected the defendant to an illegal arrest. 734 N.E.2d at 1087. “Here, the intoxication evidence was obtained solely as a result of the officers’ unlawful entry into [the defendant’s] home.” Id.

In the present case, Officer Grable was in continuous pursuit of Straub and had reasonable suspicion that he operated the truck with the snowplow while impaired or intoxicated. An intervening event did not occur to create a time lag from Officer Grable’s knowledge and observation of the impaired driving to the pursuit of Straub as the likely traffic offender. The events occurred in rapid succession and in close proximity in time to one another. Moreover, Straub committed at least one misdemeanor offense in his presence, fleeing law enforcement, and we believe that it was reasonable for Officer Grable to assume that Straub ran in order to cloak the additional offense of operating a vehicle while intoxicated. We have no doubt that Straub realized that if he was detained by Officer Grable, he would be administered a blood alcohol test. We do not believe that a defendant should be able to benefit from nature destroying the only evidence of the crime because he was more “fleet of foot” than a pursuing police officer close on the defendant’s heels. Therefore, we hold that the trial court erred in granting Straub’s motion to suppress because Officer Grable was justified in pursuing Straub into his home in order to preserve evidence of Straub’s blood alcohol content.

Conclusion

Based on the foregoing, we hold that the trial court erred in granting Straub’s motion to suppress because Officer Grable was justified in pursuing Straub into his home in order to preserve Straub’s blood alcohol content.

Reversed.

VAIDIK, J., concurs. BROOK, J., dissents with opinion.

. An appellee's brief was not filed in this case. When an appellee fails to submit a brief in accordance with our rules, we need not undertake the burden of developing an argument for the appellee. Johnson Co. Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App.1985). Indiana courts have long applied a less stringent standard of review with respect to showings of reversible error when an appellee fails to file a brief. Id. Thus, we may reverse the trial court if the appellant is able to establish prima facie error. Jones v. Harner, 684 N.E.2d 560, 562 n. 1 (Ind.Ct.App.1997).

. Ind.Code§ 9-30-5-1.

. Ind.Code § 9-30-5-3.