ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court May 10 2011, 10:05 am
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 02S03-1010-CR-604
DAMION J. WILKINS, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
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Interlocutory Appeal from the Allen Superior Court, No. 02D04-0812-FB-221
The Honorable John F. Surbeck, Jr., Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 02A03-0910-CR-451
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May 10, 2011
Dickson, Justice.
Facing charges of Unlawful Possession of a Firearm by a Serious Violent Felon as a
Class B felony and Possession of Marijuana as a Class A misdemeanor, the defendant, Damion J.
Wilkins, sought to suppress evidence obtained when police executed a search warrant. The trial
court denied his motion, and he was permitted to take this interlocutory appeal from the denial.
The Court of Appeals reversed. Wilkins v. State, 930 N.E.2d 652 (Ind. Ct. App. 2010). We
granted transfer and now affirm the denial of his motion to suppress.
Seeking reversal of the trial court's ruling, the defendant's appeal asserts three claims: (a)
lack of basis for a trash search, (b) lack of probable cause for the search warrant, and (c) viola-
tion of the federal and state constitutional provisions against unreasonable search and seizure be-
cause the warrant was executed without police knocking and announcing their presence. The
Court of Appeals resolved the first two claims against the defendant but concluded that the "no-
knock" execution of the search warrant under the circumstances violated the Indiana Constitution
and required suppression of the evidence. Id. at 663. We granted transfer to address this last
claim and now summarily affirm the Court of Appeals as to all other issues. Ind. Appellate Rule
58(A)(2).
This interlocutory appeal is a companion appeal to one brought by Wilkins's co-
defendant, Cornelius Lacey. Both co-defendants sought suppression of the evidence resulting
from the no-knock execution of a warrant for the search of the residence in which they were lo-
cated. Our opinion in Lacey's appeal is issued contemporaneously with this opinion. Lacey v.
State, ___ N.E.2d ___ (Ind. 2011).
The defendant presents three arguments to support his challenge to the no-knock entry.
One of these is his contention that the exigent circumstances should have been first presented to
a neutral and detached judicial officer to determine if the circumstances justified a no-knock en-
try and search. As addressed more fully in our opinion today in Lacey, we reject this argument.
The police were not required to present known exigent circumstances and obtain specific judicial
authorization before executing a no-knock entry.
Secondly, the defendant asserts that the no-knock execution of the warrant, even if per-
mitted under the federal and state constitutions, nevertheless violated Indiana Code § 35-33-5-7.1
He argues that the statute expresses clear legislative intent to require officers to first announce
their presence before any forcible entry. In Lacey, we noted with approval that this contention
was rejected in Beer v. State, 885 N.E.2d 33, 42–43 (Ind. Ct. App. 2008), trans. not sought. The
1
The specific statutory language relevant to the defendant's contention is subsection (d):
A law enforcement officer may break open any outer or inner door or window in order to
execute a search warrant, if he is not admitted following an announcement of his authori-
ty and purpose.
Ind. Code § 35-33-5-7(d).
2
defendant urges that Beer was incorrectly decided and that the statute should not be construed to
permit exigent circumstances to justify an officer to bypass the knock and announce requirement
when executing a warrant. We disagree and decline to further revisit Beer.
His third contention is that the factual circumstances presented in the record did not con-
stitute sufficient exigent circumstances to justify the police bypass of the knock and announce
rule. This issue was not presented in Lacey. Wilkins argues that the exigent circumstance relied
upon by the State was officer safety, that this came from Wilkins's prior conviction for armed
robbery in a home invasion and resisting arrest, and that the State failed to establish that the po-
lice had any expectation that Wilkins would be present during their search of Lacey's residence,
thus resulting in an unreasonable search prohibited by the state and federal constitutions.
The State responds alternatively that (a) there is an evidentiary dispute as to whether the
police failed to announce their presence, or (b) any no-knock entry here was justified because of
the concern for police officer safety based upon the prior criminal conduct of Lacey and Wilkins.
The search warrant authorized the Fort Wayne Police Department to search a specifically
identified building for evidence of marijuana, cocaine and its derivatives, currency, firearms and
weapons, and records of drug transactions and other financial information. Before executing the
search warrant, the officers were provided with criminal history information about both Wilkins
and Lacey. The police executed the warrant at approximately 7:30 a.m., using a ram to open the
door. One of the officers participating in the search testified at the suppression hearing that there
was no knocking or announcement of police presence before the ram was used. A video record-
ing of the entry depicts that virtually simultaneously with the forced entry, one of the officers
yelled "Police" and other inaudible words.2 The police provided the following reasons to justify
their forced entry without first knocking and announcing their presence: (a) Lacey had a warrant
for a bond revocation that stated he may be armed; (b) Lacey was a known convicted felon for
dealing in cocaine; (c) police believed that Wilkins was in the house and knew that he had been
2
The State contends that the words uttered were, "Police, we have a search warrant, open the
door." Appellee's Br. at 11. Whatever the actual words, it is clear from the video evidence that they were
yelled contemporaneously with the police forced entry and did not allow time for the occupants to comply
with any entry request.
3
arrested in 2001 for home invasion and convicted of armed robbery and resisting arrest; (d) the
officers believed that "there would possibly be weapons . . . [and] a propensity for violence due
to the armed robbery charge and the fleeing," Tr. at 16; (e) Lacey had been arrested for criminal
recklessness in 1994; and (f) the fact that police often "find weapons at the homes of drug deal-
ers." Id. In denying the defendant's motion to suppress, the trial court found "that based upon
the criminal histories of [the co-defendants], Fort Wayne Police officers were justified, for offic-
er safety, in serving the warrant without knocking and announcing their presence." Appellant's
App'x at 17. The court also determined that "[a]t the time the warrant was to be served, Fort
Wayne Police had information that Damion Wilkins, as well as Cornelius Lacey might be at the
residence when the warrant was served." Id.
The defendant asserts that the execution of the warrant violated the Search and Seizure
Clauses in the United States and the Indiana Constitutions, but he does not separately argue any
independent basis for his claim under the Indiana Constitution. Because he provides no authority
or independent analysis supporting a separate standard under the state constitution, any state con-
stitutional claim is waived. Jackson v. State, 925 N.E.2d 369, 372 n.1 (Ind. 2010); Membres v.
State, 889 N.E.2d 265, 275 n.1 (Ind. 2008); Williams v. State, 724 N.E.2d 1093, 1096 n.5 (Ind.
2000); Brown v. State, 703 N.E.2d 1010, 1015 n.4 (Ind. 1998).
Federal constitutional jurisprudence requires "only that police 'have a reasonable suspi-
cion . . . under the particular circumstances' that one of these grounds for failing to knock and
announce exists, and we have acknowledged that '[t]his showing is not high.'" Hudson v. Michi-
gan, 547 U.S. 586, 590, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56, 63 (2006) (quoting Richards v.
Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421–22, 137 L. Ed. 2d 615, 624 (1997)). Even
if the circumstances were considered to have been insufficient to justify the no-knock entry,
however, such a violation would not entitle the defendant to the exclusion of the resulting evi-
dence under federal jurisprudence.
In sum, the social costs of applying the exclusionary rule to knock-and-announce
violations are considerable; the incentive to such violations is minimal to begin
with, and the extant deterrences against them are substantial . . . . Resort to the
massive remedy of suppressing evidence of guilt is unjustified.
4
Id. at 599, 126 S. Ct. at 2168, 165 L. Ed. 2d at 69. Because the defendant presents his claim of
constitutional violation as a basis to support his motion to suppress, and suppression is not ap-
propriate under federal law, we affirm the trial court's denial of his motion.
We find that the defendant is not entitled to suppression of the evidence on these claims
of error related to the no-knock entry. Having summarily affirmed the Court of Appeals as to his
other appellate claims, we now affirm the trial court's denial of his motion to suppress.
Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.
5