MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Feb 15 2017, 9:18 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rafeal A. Faulkner, February 15, 2017
Appellant-Defendant, Court of Appeals Case No.
79A05-1605-CR-1103
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Laura W. Zeman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D04-1508-F6-178
Bailey, Judge.
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Case Summary
[1] Rafeal A. Faulkner (“Faulkner”) appeals his convictions for two Class A
misdemeanors: Maintaining a Common Nuisance1 and Taking a Child to a
Nuisance;2 and one Class B misdemeanor, Possession of Marijuana. 3 Faulkner
presents the issue of whether the trial court abused its discretion in admitting
evidence gained in a warrantless search of Faulkner’s residence. We reverse.
Facts and Procedural History
[2] On August 24, 2015, a health care facility contacted the Tippecanoe County
Sheriff’s Office for assistance in retrieving keys from a terminated employee.
Sergeant Robert Hainje was dispatched to an address in Richmond Court, an
apartment complex with buildings containing four units each. When Sergeant
Hainje entered a common hallway, he could detect the odor of marijuana.
Sergeant Hainje requested additional officers4 and waited for a few minutes
before knocking at the door of Apartment B.
[3] After Sergeant Hainje knocked four times, Faulkner opened the door and
stepped into the hallway. Sergeant Hainje detected a stronger odor of burnt
1
Ind. Code § 35-48-4-13.
2
I.C. § 35-48-4-13.3 [repealed effective July 1, 2016].
3
I.C. § 35-48-4-11.
4
No officer other than Sergeant Hainje testified at either the suppression hearing or bench trial. Sergeant
Hainje testified that other officers arrived and subsequently “cleared the apartment.” (Suppression Hrg. Tr.
at 15.)
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marijuana and saw a smoky haze inside the apartment. Sergeant Hainje asked
if Adrianna Baker lived there, if any additional adults were inside the
apartment, and if Faulkner could retrieve the health facility keys. Faulkner
advised that Baker sometimes stayed there and adults other than Baker were
then present; he agreed to get the keys from a bedroom.
[4] Faulkner moved back into his apartment, “let[ting] the door shut easily.” (Tr.
at 25.) As the door began to close, Sergeant Hainje “held [his] hand against the
door because [Faulkner] said there were additional adult males in there” and
Sergeant Hainje wanted to “freeze the situation.” (Tr. at 26.) Sergeant Hainje
stepped across the threshold and entered the apartment.
[5] Sergeant Hainje directed one of the apartment occupants to sit on the sofa. He
asked Faulkner if they could speak privately and they walked together to a back
bedroom. Sergeant Hainje requested that Faulkner consent to a premises
search and advised Faulkner of his Miranda5 and Pirtle6 rights to consult with an
attorney. Faulkner responded that “he would show [Sergeant Hainje] where
the marijuana was.” (Tr. at 12.) Faulkner displayed an ashtray that contained
two small marijuana cigarettes. He was arrested and charged with offenses
related to marijuana possession and consumption in the presence of his two
small children.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
6
Pirtle v. State, 263 Ind. 16 (1975).
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[6] Prior to trial, Faulkner moved to suppress the evidence gained as a result of the
residential entry. Following a suppression hearing, the motion was denied
upon the trial court’s determination that Faulkner had consented to the search.
On March 24, 2016, Faulkner was tried in a bench trial and convicted of the
charges against him, with the conviction for Maintaining a Common Nuisance
entered as a misdemeanor conviction as opposed to a Level 6 felony. Faulkner
received an aggregate sentence of two years, all suspended to probation. This
appeal ensued.
Discussion and Decision
[7] Faulkner argues that Sergeant Hainje’s warrantless entry into his apartment
violated his rights under the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution.7 He asks
that we review the denial of his motion to suppress. However, where a pretrial
motion to suppress is denied, the case proceeds to trial, and the defendant
renews his objection to the admission of evidence, the issue is best framed as
challenging the admission of evidence at trial. Clark v. State, 994 N.E.2d 252,
259 (Ind. 2013).
7
Although Faulkner references the Indiana Constitution in his brief, he then fails to develop a corresponding
argument with respect to the analysis set forth in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005), that is:
the degree of concern, suspicion, or knowledge that a violation has occurred, the degree of intrusion the
method of the search or seizure imposes on the citizen’s ordinary activities, and the extent of law
enforcement needs.
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[8] In ruling on admissibility after the denial of a motion to suppress, the trial court
considers the foundational evidence presented at trial. Carpenter v. State, 18
N.E.3d 998, 1001 (Ind. 2014). Also, the trial court considers the evidence from
the suppression hearing that is favorable to the defendant only to the extent it is
uncontradicted at trial. Id. Because the trial court is best able to weigh the
evidence and assess witness credibility, we review admissibility rulings for an
abuse of discretion. Id. We reverse only when admission is clearly against the
logic and effect of the facts and circumstances before the court and the error
affects a party’s substantial rights. Id. However, the ultimate determination of
the constitutionality of a search or seizure is a question of law that we consider
de novo. Id.
[9] Faulkner concedes having given a verbal assent to search; however, he
maintains that his consent was “invalidated by [Sergeant Hainje]’s illegal
entry.” Appellant’s Br. at 23. The State responds that exigent circumstances,
relative to the imminent destruction of evidence, supported Sergeant Hainje’s
warrantless entry into the apartment and that, “regardless of [Sergeant] Hainje’s
conduct in entering the apartment,” Faulkner’s consent was “voluntary and
valid.” Appellee’s Br. at 23.
[10] The Fourth Amendment provides, in relevant part: “The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated….” The Fourth Amendment’s
protections against unreasonable searches and seizures extend to the States
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through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-65
(Ind. 1998) (citing Mapp v. Ohio, 367 U.S. 643, 650 (1961)).
[11] “It is axiomatic that the ‘physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.’” State v. Straub, 749
N.E.2d 593, 597 (Ind. Ct. App. 2001) (quoting U.S. v. U.S. Dist. Court for E. Dist.
of Mich., S. Div., 407 U.S. 297, 313 (1972)). A principal protection against
unnecessary intrusions into private dwellings is the Fourth Amendment’s
warrant requirement. Straub, 749 N.E.2d at 597. Searches performed by
government officials without obtaining warrants are per se unreasonable under
the Fourth Amendment, subject to a ‘“few specifically established and well-
delineated exceptions.”’ Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)
(quoting Katz v. U.S., 389 U.S. 347, 357 (1967)).
[12] “Any warrantless entry based on exigent circumstances must, of course, be
supported by a genuine exigency.” Kentucky v. King, 563 U.S. 452, 470, 131 S.
Ct. 1849, 1862 (2011). 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 absent an
immediate arrest; (3) where a violent crime has occurred and entry by police
can be justified to prevent further injury or aid the injured; and (4) in cases that
involve hot pursuit or movable vehicles. Straub, 749 N.E.2d at 597-98. The
State bears the burden of proving that an exception to the warrant requirement
applied at the time of a warrantless search. Id. at 598. The remedy for an
illegal warrantless search is the suppression of the evidence obtained from the
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search. Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2004), trans.
denied.
[13] Our supreme court has explained the circumstances where the exigency of
imminent destruction of evidence may be found applicable:
Exigent circumstances justifying a warrantless 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. The fact that narcotics are
involved does not, standing alone, amount to exigent
circumstances justifying a warrantless search or seizure.
Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind. 1994) (quoting Harless v. State
(1991), Ind. App., 577 N.E.2d 245, 248 (citations omitted)). When this
exception to the warrant requirement is asserted, the State is required to show
evidence that the police had an objective and reasonable fear that the evidence
was about to be destroyed. Esquerdo, 640 N.E.2d at 1027. “Federal law
requires this showing to be made by clear and convincing evidence.” Id.
[14] Turning to the particular facts of this case, we note that the sole witness at the
bench trial was Sergeant Hainje. Sergeant Hainje testified that he smelled
marijuana in a common hallway and summoned other officers. As he waited
for the others, Sergeant Hainje stood in the hallway and “continued to hear
loud music.” (Tr. at 7.) After a while, the music stopped and Sergeant Hainje
heard hushed voices, “scurrying,” and movement inside the apartment. (Tr. at
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8.) The music resumed. Sergeant Hainje knocked at the door “after the music
started back up.” (Tr. at 8.) By this time, Faulkner had sprayed some air
freshener.
[15] Sergeant Hainje’s testimony suggests that he subjectively feared that evidence
might be destroyed, although he stopped short of explicitly stating as much. He
testified that he pushed against Faulkner’s door and entered the apartment “just
to observe for the additional adult persons that were in the apartment and to
just kind (inaudible) the situation so that I could determine what further action
needed to be pursued.” (Tr. at 10.) He reiterated on cross-examination: “[The
door] began to close and that’s when I held my hand against the door because
he said there were additional adult males in there. As well as I wanted to freeze
the situation due to the overwhelming odor of marijuana and the haze that was
present.” (Tr. at 25-26.)
[16] We disapprove of the rationale that the presence of adult males in a private
apartment is, without more, predictive of destruction of evidence. The fact that
a citizen has guests – few or many, male or female – is not an exigent
circumstance supporting a warrantless intrusion. Nor is a professed desire to
maintain the status quo or facilitate further investigation an exigency. Indeed,
“[f]reedom from intrusions into the home or dwelling is the archetype of the
privacy protections secured by the Fourth Amendment.” Snellgrove, 469 N.E.2d
337, 340 (Ind. 1991).
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[17] Apart from the concern as to the presence of adult males, we are left with the
testimony that sounds were heard coming from inside the apartment and air
freshener had been sprayed, in an apparently unsuccessful attempt to mask
odor. There is no evidence of yelling or frenetic activity. See e.g., Harless, 577
N.E.2d at 248-49 (finding police officers’ warrantless search illegal under the
destruction of evidence exigent circumstance in part because officers did not
“observe any persons inside the home scrambling frantically to destroy evidence
of controlled substances before the officers entered”). Ultimately, there is
insufficient evidence of an “objective and reasonable fear” that evidence was
about to be destroyed when Sergeant Hainje entered the apartment without a
warrant. Id. at 248.8
[18] Notwithstanding the circumstances surrounding the entry, the State contends
that Faulkner gave a valid consent to search after receiving Miranda and Pirtle
warnings. In Galvin v. State, 582 N.E.2d 421 (Ind. Ct. App. 1991), trans. denied,
the State argued that, even if police entry was illegal, the defendant’s consent to
search was valid because it was not the result of the entry. Within an hour after
8
The State also argues that “the conduct was chiefly motivated by [Sergeant] Hainje’s concern about
unknown adult males in the home under circumstances where illegal drugs were being consumed” and
therefore, “Deputy Hainje was not legally required to obtain express consent from Defendant to put his hand
on the door to allow him to observe, or to simply step inside the apartment.” Appellee’s Br. at 18-19. To the
extent that the State may be said to claim that “officer safety” justified the warrantless entry, the State has
identified no authority for the proposition that subjective safety concerns, in the absence of exigent
circumstances, provide an exception to the warrant requirement of the Fourth Amendment. Moreover, the
evidence does not support the State’s contention that officer safety was a legitimate concern when Sergeant
Hainje entered the apartment alone and confronted the risk of unknown occupants rather than to wait
outside the door until other officers arrived to back him up.
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the officers made an illegal entry into the defendant’s home, and with several
officers still present, the defendant was requested to give her consent to a
search. She was not told that the court had refused to give the officers a search
warrant. See id.
[19] On appeal, the court observed that the relevant inquiry was ‘“whether, granting
establishment of the primary illegality, the evidence to which instant objection
is made has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.”’ Id. at 424
(quoting Snellgrove, 569 N.E.2d at 341). Several factors were to be considered in
determining whether a consent to search given after an illegal entry is an act of
free will sufficient to purge the primary taint: whether Miranda warnings were
given; the temporal proximity of the illegal entry and the consent to search; the
presence of intervening circumstances; the voluntariness of the consent; and
particularly the purpose and the flagrancy of the official misconduct. Id. The
Galvin Court found that the defendant’s consent was not given voluntarily and
independent of the illegal entry and thus the consent was invalid. Id.
[20] In Ware v. State, 782 N.E.2d 478 (Ind. Ct. App. 2003), a panel of this Court was
again presented with the State’s argument that consent to search was not the
product of an illegal entry and was valid. The defendant was given a Miranda
warning; however, he was asked to consent to a search within minutes of an
officer’s warrantless entry into his home. See id. at 483. There were no
intervening circumstances between the warrantless entry and the request for
consent, other than the arrival of additional police officers. Id. “The purpose of
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Officer Carpenter’s warrantless entry was to secure the residence for the
possible discovery of marijuana; however, no exigent circumstances existed.”
Id. The Court made a final observation as to the flagrancy of the misconduct:
“we note that a warrantless home entry should rarely be sanctioned when there
is probable cause to believe that only a minor offense has been committed. Id.
(citing Haley v. State, 696 N.E.2d 98, 103 (Ind. Ct. App. 1998), trans. denied).
The Court declined to “overlook the inherent coercive effect” of the intrusion
upon Ware’s decision to consent and concluded that Ware’s consent had not
been given voluntarily and independently of the illegal entry. Id.
[21] Here, Faulkner was retrieving keys at Sergeant Hainje’s request when Sergeant
Hainje entered Faulkner’s residence “to freeze the situation.” (Tr. at 26.) The
entry was not prompted by exigent circumstances. Sergeant Hainje took
control of the premises by commanding Faulkner’s guest to sit on the sofa and
asking Faulkner if they could speak privately. Without intervening
circumstances or appreciable lapse of time, Faulkner was presented with a
request that he consent to a premises search. Faulkner was given Miranda and
Pirtle advice. According to Sergeant Hainje, Faulkner was “obviously not free
to leave at that point.” (Suppression Hrg. Tr. at 20.) There was probable cause
to believe that a minor offense of possession of marijuana had been committed;
also, law enforcement knew that children were present.
[22] An application of the factors found relevant in Galvin and Ware leads us to the
same conclusion here. Although Faulkner received advice of rights, we cannot
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say that his consent was given voluntarily and independent of the illegal entry.
His consent, the product of an illegal entry, was invalid.
Conclusion
[23] The evidence obtained as a result of Sergeant Hainje’s warrantless entry into
Faulkner’s apartment should have been suppressed. The trial court erred in
admitting that evidence.
[24] Reversed.
Najam, J., and May, J., concur.
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Rafael A. Faulkner v. State of Indiana (mem. dec.)
Combined Opinion