State v. Straub

BROOK, J.,

dissenting.

I agree with the standard cited by the majority for reviewing motions to suppress. See Carter v. State, 686 N.E.2d 1254, 1258 (Ind.1997); Haviland v. State, 677 N.E.2d 509, 513 (Ind.1997). I part ways with the analysis and conclusion.

*602At the outset, I would note that during the ride to the police station, Straub asked Officer Grable what charges would be filed. Officer Grable opined that Straub would be charged with resisting law enforcement and operating a vehicle while intoxicated. Straub explained that he already had an OWI conviction and could not get another. Once at the police station, Officer Grable read the Miranda rights to Straub and asked him why he fled. Straub replied that he was out getting cigarettes when the driver of the lead truck cut him off, which caused Straub to drive erratically. Straub also claimed that he was dropping his snow blade on the road to help him stop on the icy road. He then admitted that he did not stop when ordered to because he got scared. Straub took the chemical breath test after making these statements. It is these statements that the State argues should not have been suppressed.

“[I]f a confession is the product of an unlawful detention or an illegal arrest it is inadmissible.” Dillon v. State, 454 N.E.2d 845, 851 (Ind.1983); see also Campbell v. State, 500 N.E.2d 174, 179 (Ind.1986) (“Statements, however voluntary, are inadmissible under the Fourth Amendment if they are the product of an illegal detention and not the result of an independent act of free will.”). A warrantless in-home arrest is not valid without probable cause to arrest the suspect and exigent circumstances making it impractical to first procure an arrest warrant. Harrison v. State, 424 N.E.2d 1065, 1068 (1981) (emphasis added). We have elaborated:

Courts should take a very hard line against the search of a person’s home without a warrant or consent; and therefore, demand a genuine showing of an emergency before they will excuse the police’s failure to obtain a warrant. Such exigent circumstances justify dispensing with the search warrant but do not eliminate the need for probable cause. The State bears the burden of proving that a warrantless search falls into one of the exceptions to the requirement of a judicially issued search warrant.
The exceptions to the fourth amendment’s requirement of a search warrant before lawful entry of a premises include risk of bodily harm or death, aiding a person in need of assistance, protecting private property, or actual or imminent destruction or removal of evidence before a search warrant may be obtained. Exigent circumstances justifying a war-rantless search exist where the police have an objective and reasonable fear that the evidence is about to be destroyed; the arresting officers must have a reasonable belief that there are people within the premises who are destroying or about to destroy the evidence. In such a case, the evidence’s nature must be evanescent and the officers must fear its imminent destruction.

Harless v. State, 577 N.E.2d 245, 248 (Ind.Ct.App.1991) (citations omitted).

We have found “the threat of the ‘metabolic destruction of the evidence’ of a suspect’s intoxication, i.e., the bodily absorption of the alcohol in his 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)). In view of Zimmerman, I am willing to agree with the majority’s assertion that exigent circumstances existed. But see Justice v. State, 552 N.E.2d 844, 847 (Ind.Ct.App.1990) (stating, in a different context: “Absent an auto accident, the dissipation of alcohol in the blood does not alone create exigent circumstances.”). However, the exigent circumstance of dissipation of alcohol does *603not seem to be of the same magnitude as the other types of exigent circumstances.

As I have already noted, exigent circumstances must be coupled with probable cause to arrest. “Probable cause is said to exist when, at the time of an arrest, the arresting officer has knowledge of facts and circumstances which would warrant a reasonably cautious and prudent man to believe the suspect committed the criminal act in question.” State v. Blake, 468 N.E.2d 548, 550 (Ind.Ct.App.1984). Thus, I examine the possible bases for probable cause.

Until he spoke with Straub, Officer Grable knew only that: (1) a citizen had reported that a truck was being driven erratically; and (2) a man was running away from the area where Officer Grable had lost sight of the truck. There was no evidence that the citizen gave a description of the driver of the truck. Officer Grable conceded that he had “no idea” how many people were in the truck (Record at 114) and that he did not “have any idea who [the] white male [was]” that he saw running (Record at 125). Indeed, during Officer Grable’s deposition, the following colloquy transpired:

A. ... I see the suspect about here, running down this hill.
Q. ... How far are you, when you say suspect, you just see a person?
A. Correct. I see an individual.

Record at 126.

Q. So you know it’s a white male, but you really can’t link this white male at this point in time to the truck, you believe it might be?
A. Correct.
Q. And if this person is not that person, I mean, this person has done nothing wrong?
A. That’s correct.

Record at 130. Hence, Officer Grable did not know if Straub was the driver of the truck, let alone if the driver was intoxicated. Cf. Blake, 468 N.E.2d at 550 (officer, who had continuously pursued vehicle after seeing it speeding, actually saw defendant exit driver’s seat of vehicle and enter home). Given these facts, I would agree that Officer Grable had reasonable suspicion to stop Straub and question him further. However, I do not believe that, prior to Officer Grable’s warrantless entry into Straub’s apartment, he had probable cause to arrest Straub for operating while intoxicated.

In order to have probable cause to arrest Straub for resisting law enforcement, Officer Grable must have had knowledge of facts and circumstances that would warrant a reasonably cautious and prudent person to believe that Straub had knowingly or intentionally fled from Officer Grable after he had, by visible or audible means, identified himself and ordered him to stop. See Ind.Code § 35-44-3-3(a)(3). Officer Grable testified that after losing sight of the truck, he saw Straub run and fall, at which point he yelled, “stop, police.” Officer Grable then stated, “I remember the individual looking at me. I think I surprised him. He continues and ignores my command. He gets up and continues running again in the same direction.... ” Record at 127. As he pursued Straub, Officer Grable continued yelling for him to stop, but Straub did not comply. When Straub reached his apartment and grabbed the doorknob, he made eye contact with Officer Grable. Officer Grable yelled again, but Straub entered the apartment and shut the door. Under these circumstances, Officer Grable had probable cause to arrest Straub for resisting law enforcement as a misdemeanor. Cf. Jones v. State, 164 Ind.App. 252, 254, 328 N.E.2d 221, 223 (1975) (concluding there was sufficient evidence an even higher standard *604than probable cause to support resisting law enforcement under following facts: policeman heard report that cabdriver was robbed, saw a man running near the area where robbery occurred, and verbally identified himself as a police officer; defendant turned and looked at policeman and his marked patrol car before resuming his flight).

Accordingly, I conclude that exigent circumstances existed in the form of dissipation of alcohol and that there was probable cause to arrest for misdemeanor resisting law enforcement. Despite this conclusion, I am troubled by the lack of nexus between the particular exigent circumstances and the offense for which Officer Grable had probable cause. See Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (invalidating in-home warrantless arrest because there were no exigent circumstances great enough to allow the police to enter the defendant’s home to arrest him on a minor infraction). Perhaps sharing my doubts on this issue, the State did not argue that potential alcohol dissipation constituted exigent circumstances here. The State argued that Officer Grable had a reasonable suspicion that Straub committed operating while intoxicated; that Officer Grable had probable cause to arrest Straub for resisting law enforcement after he fled despite repeated orders to stop; and that Officer Grable’s continuous pursuit constituted the exigent circumstances to support the warrantless in-house arrest of Straub. Yet, none of the cases upon which the State relies are precisely on point with the present one.

In Blake, the police officer “clocked” the defendant’s car speeding, activated his lights and siren, pursued the car, and watched as the defendant exited the driver’s seat and entered his home despite the officer’s order to stop. 468 N.E.2d at 549. The officer then entered the home and arrested the defendant for resisting law enforcement and operating while intoxicated. The defendant also received a speeding citation. Id. The arresting officers in Miller observed the defendant commit the offenses of reckless driving and criminal recklessness and then engaged in an immediate and continuous high-speed pursuit from the scene of the crimes to the defendant’s home where, still in pursuit, the officers entered his house and arrested him. Miller v. State, 634 N.E.2d 57, 62 (Ind.Ct.App.1994); see also Lepard v. State, 542 N.E.2d 1347, 1348-49 (Ind.Ct.App.1989) (after seeing defendant commit two traffic infractions, officer continuously pursued him onto his driveway so she could question him; upon questioning him, she had probable cause to believe he had been operating while intoxicated; once he went into his house, she had probable cause to believe he was resisting and could therefore make warrantless in-home arrest).

Here, in contrast, Officer Grable did not know if Straub was the person who was operating the truck. Hence, Officer Grable’s continuous pursuit of Straub did not begin when he was following the truck, but rather when he saw Straub running, identified himself as a police officer, and told him to stop. To permit a warrantless in-home arrest under such circumstances, where there was only probable cause to arrest for misdemeanor resisting and exigent circumstances in the form of continuous pursuit from the time of the alleged resisting, would seem to me to be an expansion of the law regarding warrantless in-home arrests. It would appear to pave the way for warrantless in-home arrests in numerous situations not previously contemplated. I am unwilling to endorse such an expansion. I would conclude that this warrantless in-home arrest was illegal and that therefore Straub’s statements, which *605resulted from the arrest, were properly suppressed.

For these reasons I dissent.