                                                                               FILED
                                                                          May 17 2016, 8:43 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Adam Lenkowsky                                            Gregory F. Zoeller
Roberts & Bishop                                          Attorney General of Indiana
Indianapolis, Indiana                                     Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Jones and Jamaal Jones,                          May 17, 2016
Appellants-Defendants,                                    Court of Appeals Case No.
                                                          49A02-1508-CR-1148
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Jose Salinas, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G14-1410-F6-48599 & 49G14-
                                                          1410-F6-48603



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016                       Page 1 of 16
                                    STATEMENT OF THE CASE1

[1]   Appellants-Plaintiffs, Jennifer Jones 2 (Jennifer) and Jamaal Jones (Jamaal)

      (collectively, Jones), appeal the trial court’s denial of their motion to suppress

      the evidence discovered during a warrantless search of their residence.


[2]   We affirm.


                                                     ISSUES

[3]   Jones raises three issues on appeal, which we restate as:


          (1) Whether the warrantless search of Jones’ residence is justified based on

              the exigent circumstances to conduct a welfare check on three minor

              children left unattended in the home in the middle of the night;

          (2) Whether police officers may conduct a protective sweep of the residence

              as part of a welfare check; and

          (3) Whether the Butler University Police Department had jurisdiction

              pursuant to the Trustees Resolution to conduct a welfare check based on

              the particular facts in this case.


                            FACTS AND PROCEDURAL HISTORY




      1
       We held oral argument in this case on April 21, 2016 at St. Joseph’s College in Rensselaer. We thank the
      College for its hospitality and counsel for their advocacy.
      2
       Jennifer was charged under her maiden name Jennifer DeJesus, but by April of 2015 she had married
      Jamaal and taken his last name.



      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016                        Page 2 of 16
[4]   This case comes before us as an interlocutory appeal from the trial court’s

      denial of Jones’ motion to suppress. In October of 2014, Jennifer and Jamaal

      lived with Jennifer’s three children, who were six, nine, and twelve, near the

      Butler University campus in Indianapolis, Indiana.


[5]   On October 20, 2014, around 1:08 a.m., Officer Chris Nelson (Officer Nelson)

      of the Butler University Police Department (BUPD) initiated a traffic stop 3 of a

      vehicle driven by Jennifer just south of 42nd Street and Capitol Avenue. Officer

      Nelson retrieved Jennifer’s identifying information and vehicle registration and

      noticed “an extremely strong odor of marijuana emitting from the vehicle.”

      (Transcript p. 20). Jennifer informed Officer Nelson that “she had just gotten

      off work and was running to the convenient [sic] store to get milk for her kids

      for the morning.” (Tr. p. 22). After Officer Nelson informed Jennifer of his

      observation of marijuana odor, Jennifer responded that she “had no idea why it

      would smell like that and reiterated the fact that she had just gotten off work.”

      (Tr. p. 22). Officer Nelson requested Jennifer to exit and to “step to the rear of

      the vehicle.” (Tr. p. 22). Meanwhile, two other BUPD officers arrived. Officer

      Nelson conducted a probable cause search of the vehicle and located a

      marijuana blunt in the ashtray and “several pills that were identified as a

      controlled substance in a personal bag belonging” to Jennifer. (Tr. p. 23).

      Officer Nelson placed Jennifer under arrest.




      3
          Jones does not dispute the propriety of the traffic stop or the subsequent search of the vehicle.


      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016                                 Page 3 of 16
[6]   As soon as she was placed under arrest, Jennifer asked, “What about my

      children? They’re home alone[.]” (Tr. p. 24). Officer Nelson informed her that

      officers would be sent to the house to check on the children and make

      arrangements for their safety. Officer Nelson transported Jones to the BUPD

      station. While in route, Officer Nelson requested dispatch to contact the

      Indianapolis Metropolitan Police Department (IMPD) to conduct a welfare

      check on the children. At approximately 1:45 a.m., IMPD and Sergeant

      Anthony Rivera (Sergeant Rivera) of the BUPD arrived at the Jones’ residence.

      The officers were unable to make contact with the children inside the residence.


[7]   At the BUPD station, Jennifer was given her cell phone and was asked to call

      her residence. During the subsequent thirty minutes, Jennifer tried to get in

      touch with her children but failed. She became concerned and she next

      contacted her mother-in-law. Officer Nelson decided to go to Jennifer’s

      residence with Jennifer’s house keys.


[8]   Upon his arrival at the residence, Officer Nelson knocked and announced his

      presence. At this point, almost an hour had lapsed since Jennifer had informed

      the officers that her children were home alone. Officer Nelson unlocked the

      front door, entered the home, and again identified himself and multiple times

      called to the children. He received no response. As soon as Officer Nelson

      walked in the residence, he could smell “an extremely strong odor of raw

      marijuana in the air. It was pretty potent.” (Tr. p. 29). Walking toward the

      bedrooms to search for the children, Officer Nelson noticed a “little bit of

      [marijuana] remnants on the coffee table.” (Tr. p. 29). Moving past that,

      Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 4 of 16
       Officer Nelson located one of the children sleeping in one of the bedrooms.

       Another officer was able to locate the other two children in a second bedroom.

       “Officer Marshall took the third bedroom to the left which ended up being the

       master suite at which time right in plain view when you walk in the room, he

       was able to observe a glass jar containing marijuana.” (Tr. p. 29). Sergeant

       Rivera went “down to the basement[,]” where he found lighting systems and

       marijuana plants. (Tr. p. 55).


[9]    After waking the children up, Officer Nelson informed them that their mother

       would not be returning to the residence that night and that someone needed to

       be contacted to stay with them. A short while later, the children’s grandparents

       arrived. A search warrant was obtained and executed several hours after the

       children had been located and removed from the residence. In the course of

       executing the search warrant, the marijuana and lighting equipment were

       seized.


[10]   On October 22, 2014, the State filed an Information charging Jennifer with

       dealing in marijuana, a Level 6 felony; possession of a narcotic, a Level 6

       felony; neglect of a dependent, a Level 6 felony; possession of a controlled

       substance, a Class A misdemeanor; and possession of marijuana, a Class B

       misdemeanor. The State charged Jamaal with dealing in marijuana, a Level 6

       felony; possession of a narcotic, a Level 6 felony; neglect of a dependent, a

       Level 6 felony; and possession of marijuana, a Class B misdemeanor. On

       November 12, 2014, Jones filed a motion to suppress, which was amended on

       December 4, 2014. On April 23, 2015, the trial court conducted an evidentiary

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 5 of 16
       hearing on the amended motion to suppress. On July 9, 2015, the trial court

       issued its ruling from the bench, denying the amended motion to suppress.


[11]   On August 17, 2015, the trial court certified its order for an interlocutory

       appeal, which this court accepted. Additional facts will be provided as

       necessary. 4


                                   DISCUSSION AND DECISION

                                              I. Standard of Review


[12]   Jones contends that the trial court erred in denying the motion to suppress the

       evidence found as a result of a warrantless search. Our standard of review for

       the denial of a motion to suppress evidence is similar to other sufficiency issues.

       Westmoreland v. State, 965 N.E.2d 163, 165 (Ind. Ct. App. 2012). We determine

       whether substantial evidence of probative value exists to support the denial of

       the motion. Id. We do not reweigh the evidence, and we consider conflicting

       evidence that is most favorable to the trial court’s ruling. Id. However, the

       review of a denial of a motion to suppress is different from other sufficiency

       matters in that we must also consider uncontested evidence that is favorable to

       the defendant. Id. We review de novo a ruling on the constitutionality of a

       search or seizure but we give deference to a trial court’s determination of the




       4
        On February 13, 2016, Jones filed a motion for emergency transfer to the Indiana Supreme Court, which
       was denied on March 7, 2016.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016                      Page 6 of 16
       facts, which will not be overturned unless clearly erroneous. Campos v. State,

       885 N.E.2d 590, 596 (Ind. 2008).


                                           II. Exigent Circumstances


[13]   First, Jones contends that the trial court erred when it determined that the

       BUPD officers had properly entered the residence in the middle of the night to

       check on the welfare of the minor children based on the exigent circumstances

       exception of the Fourth Amendment.


[14]   The Fourth Amendment protects persons from unreasonable search and

       seizure, and this protection has been extended to the states through the

       Fourteenth Amendment. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). As

       such, warrantless searches and seizures inside the home are presumptively

       unreasonable. Buckley v. State, 797 N.E.2d 845, 848 (Ind. Ct. App. 2003).

       Nonetheless, there are limited exceptions to the warrant requirements under the

       Fourth Amendment. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),

       trans. denied. A well-recognized exception is the existence of exigent

       circumstances. Id. Under this exception, police officers may enter a residence

       if the situation suggests a reasonable belief of risk of bodily harm or death, a

       person in need of assistance, a need to protect private property, or actual or

       imminent destruction or removal of evidence before a search warrant may be

       obtained. Scott v. State, 803 N.E.2d 1231, 1235-36 (Ind. Ct. App. 2004).

       “However, a police officer’s subjective belief that exigent circumstances exist is

       insufficient to support a warrantless search.” United States v. Richardson, 208


       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016    Page 7 of 16
       F.3d 626, 629 (7th Cir. 2000), cert. denied, 531 U.S. 910 (2000). Rather, “as is

       normally the case for Fourth Amendment inquiries, the test is objective: ‘the

       government must establish that the circumstances as they appear at the moment

       of entry would lead a reasonable, experienced law enforcement officer to

       believe that someone inside the house, apartment, or hotel room required

       immediate assistance.’” Id. (quoting United States v. Arch, 7 F.3d 1300, 1304 (7th

       Cir. 1993)). In this light, “[o]fficers do not need ironclad proof of ‘a likely

       serious, life-threatening’ injury to invoke the emergency aid exception.”

       Michigan v. Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009).

       “[E]xigent circumstances justify dispensing with the search warrant but do not

       eliminate the need for probable cause.” Harless v. State, 577 N.E.2d 245, 248

       (Ind. Ct. App. 1991). “[I]n an emergency, the probable cause requirement may

       be satisfied where the officers reasonably believe a person is in danger.” United

       States v. Holloway, 290 F.3d 1331, 1338 (11th Cir. 2002), cert. denied, 537 U.S.

       1161 (2003). The United States Supreme Court has recognized that “customary

       social usage” will have a “substantial bearing on Fourth Amendment

       reasonableness in specific circumstances.” Georgia v. Randolph, 547 U.S. 103,

       212, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).


[15]   Based on a survey of case law of our sister jurisdictions, Jones reached the

       conclusion that courts have upheld the warrantless entry into residences to

       assist unattended children of “tender age” or “small children.” See People v.

       Somas, 68 Misc.2d 450, 458 (Nassau Co. Ct. 1972) (where the court upheld the

       entry into a house with unattended children, aged two and five years, and the

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016     Page 8 of 16
       older child had informed the officers that there were drugs and guns in the

       residence); United States v. Taylor, 624 F.3d 626 (4th Cir. 2010), cert. denied, 563

       U.S. 925 (2011) (where the court upheld a search of the house of a four-year-old

       who was out wandering and whose parents could not be located). At the same

       time, Jones also refers to two Indiana cases: State v. Crabb, 835 N.E.2d 1068

       (Ind. Ct. App. 2005), trans. denied and Holder v. State, 847 N.E.2d 930 (Ind.

       2006).


[16]   In both Crabb and Holder, this court upheld the warrantless entry into a

       residence based on exigent circumstances. In each case, officers commenced an

       investigation after detecting a strong chemical odor in the air. Crabb, 835

       N.E.2d at 1069; Holder, 847 N.E.2d at 933. After knocking on the door of the

       residence from which the odor emanated, the officers were advised that a young

       child was in the house. Crabb, 835 N.E.2d at 1069; Holder, 847 N.E.2d at 934.

       In both Crabb and Holder, the court concluded that under the circumstances the

       officers had a reasonable objective belief that a person inside the residence was

       in need of aid. Crabb, 835 N.E.2d at 1070; Holder, 847 N.E.2d at 940.


[17]   Based on the out-of-state jurisprudence and the two Indiana cases, Jones distills

       and proposes the following rule: “police may make warrantless entries into

       homes solely based on concern for the welfare of unattended children only

       when the children are of such a tender age that they are not capable of caring

       for themselves; otherwise, the police need some objective, articulable concern

       for the safety of the children.” (Appellants’ Br. p. 15). Applying this rule to the

       facts before us, Jones focuses on the twelve-year-old child who “was of such an

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016     Page 9 of 16
       age that she was capable of babysitting and the attendant responsibilities and

       duties.” (Appellants’ Br. p. 14). Distinguishing the children from “small

       children” or “children of a tender age,” Jones assures that they were capable of

       functioning on their own for periods of time. (Appellants’ Br. p. 16).

       Therefore, as there was no objective danger to the safety of the children which

       could support the exigent circumstances exception of the Fourth Amendment,

       Jones contends that BUPD’s entry into the residence violated Jones’ Fourth

       Amendment rights.


[18]   Relying on Fisher’s pronouncement that “[o]fficers do not need ironclad proof

       of ‘a likely serious, life-threatening’ injury to invoke the emergency aid

       exception,” the State focuses on out-of-state and federal caselaw identifying

       circumstances in which officers may enter a home to provide aid to unattended

       children. Fisher, 558 U.S. at 49. The State posits that the children were too

       young to be left alone for any significant amount of time. “[T]he uncertainty of

       the situation combined with the vulnerability of [Jennifer’s] young children

       presented a need for the officers’ immediate action.” (Appellee’s Br. p. 18).


[19]   In support of its argument, the State points to U.S. v. Bradley, 321 F.3d 1212,

       1213 (9th Cir. 2003), where officers had arrested Williams, Bradley’s passenger,

       during a traffic stop. Based on previous encounters, the officers knew Williams

       had a nine-year-old son, whom Williams admitted was at her house. Id. at

       1214. When they did not receive a response after knocking on the residence’s

       front door, the officers entered the house to search for the child. Id. The court

       held that based on the particular facts . . . [t]he possibility of a nine-year-old

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016     Page 10 of 16
       child in a house in the middle of the night without supervision of any

       responsible adult is a situation requiring immediate police assistance.” Id. at

       1215. See also State v. Peterson, 543 S.E.2d 692, 696 (Ga. 2001) (where the court

       noted that an officer’s entry in the house for the purpose of seeing that the

       children who had been left without responsible adult supervision were cared for

       properly was not a violation of the residents’ Fourth Amendment rights), cert.

       denied 534 U.S. 955 (2001).


[20]   Upon review, we find Crabb and Holder inapposite to the facts at hand. In both

       cases, the officers were investigating a chemical odor in the neighborhood and

       were not called solely for a welfare check. While a young child ultimately

       became the reason for the officers to enter the residence without a warrant, this

       minor was not the officers’ primary concern when knocking on the residence’s

       door. Rather, just like Bradley, the officers arrived at Jones’ residence in the

       middle of the night to check on the welfare of three unattended minor children

       after having conducted a traffic stop which resulted in their mother’s arrest.

       Despite their mother’s phone calls and the officers’ knocking on the front door,

       the children did not respond. When the officers were unable to wake the

       children, they “reasonably could have interpreted the silence that met their

       knocks as an inability to respond.” Montgomery v. State, 940 N.E.2d 374, 380

       (Ind. Ct. App. 2009), trans. denied. We find that the reasonable belief that minor

       children in a residence are without adult supervision is an exigent circumstance

       that authorized police entry to help those believed to be in need of immediate

       aid. Unlike the majority of cases discussing exigent circumstances, the officers

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 11 of 16
       here were not motivated by an intent to apprehend a suspect or to seize

       incriminating evidence. See, e.g., Mc Dermott v. State, 877 N.E.2d 467 (Ind. Ct.

       App. 2007), trans. denied.


[21]   In cases like the one before us which involve older children, Jones would have

       us require the officers to obtain specific corroborating evidence of a serious, life-

       threatening injury before entering the residence. However, “the very point of

       exigent circumstances is that officers are confronted with a situation where time

       is of the essence and immediate action required.” Montgomery, 904 N.E.2d at

       381. We cannot find many situations more urgent than three children left alone

       in their home in the middle of the night without any certainty as to when a

       responsible adult might next enter the house. Indeed, more than once, at the

       time of her arrest and subsequently, Jennifer expressed concern for the welfare

       of her children who were home alone. The lateness of the hour and lack of

       knowledge as to the conditions inside the home increased the exigency of the

       situation. As stated by the Supreme Court, “[w]e do not question the right of

       the police to respond to emergency situations . . . The need to protect or

       preserve life or avoid serious injury is justification for what would be otherwise

       illegal.” Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed. 290

       (1978). We conclude that the State established both exigency and an

       objectively reasonable belief that the children were in need of aid. Therefore,

       the officers’ warrantless entry of Jones’ residence did not violate the Fourth

       Amendment. See Campos, 885 N.E.2d at 596.


                                               III. Protective Sweep

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 12 of 16
[22]   Next, Jones contends that the evidence from Sergeant Rivera’s protective sweep

       of the basement should be suppressed as the “protective sweep incident to a

       welfare check” took place “after the children had been located and secured.”

       (Appellants’ Br. p. 17). Even though Sergeant Rivera articulated that he had

       been given some information that a male might be in the house, Jones

       maintains that the protective sweep occurred after the children had been located

       and the exigency had ceased.


[23]   In Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990),

       the Supreme Court held that incident to an arrest, police officers may, as a

       precautionary measure and without probable cause or reasonable suspicion,

       conduct a brief search of areas immediately adjoining the place of arrest from

       which an attack could be immediately launched. The Court emphasized that

       “such a protective sweep, aimed at protecting the arresting officers, if justified

       by the circumstances, is nevertheless not a full search of the premises, but may

       extend only to a cursory inspection of those spaces where a person may be

       found.” Id. at 335.


[24]   While we acknowledge the conflicting evidence in the record as to whether the

       basement was entered before or after the children were located, the trial court

       found:

               But I believe the search of the basement for a protective sweep
               that was done in conjunction with the welfare check was
               appropriate. They hadn’t found the kids yet. Some of the
               officers were checking the bedrooms. One officer was checking
               the basement.

       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 13 of 16
       (Tr. p. 115). Accordingly, mindful of our deference to the trial court’s

       determination of facts, we cannot categorize Sergeant Rivera’s entry into the

       basement as a protective sweep because the Sergeant’s primary purpose in

       entering the basement was not to deter possible attacks and to establish a safety

       perimeter, but to locate the children. Therefore, as the exigency was still in

       existence, we conclude that Sergeant Rivera’s entry into the basement was

       permissible.


                                             IV. BUPD Jurisdiction


[25]   Lastly, Jones claims that BUPD exceeded its jurisdiction when it conducted the

       welfare check on the minor children. Indiana Code section 21-17-5-5(b)

       authorizes university police officers to exercise general jurisdiction over their

       own buildings and adjacent streets. Beyond this, their jurisdiction may be

       extended by Board resolution. I.C. § 21-17-5-5(c)(1). Here, Butler University

       generally extended BUPD jurisdiction to the entire state of Indiana and then

       placed certain restrictions on its application. Most notably, BUPD can exercise

       this extended jurisdiction within Marion County only when, among others, the

       officer “observes a situation where there is danger to personal or public safety

       arising out of criminal or non-criminal circumstances and immediate action

       would help alleviate the danger” or the officer “provides aid to members of the

       community during an emergency.” (Def. Ex. A, p. 2). The trial court

       determined that both restrictions applied to the situation at hand.




       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016    Page 14 of 16
[26]   Because we concluded that the officers’ entry into Jones’ residence was justified

       as an emergency situation to render aid to three unattended minors in the

       middle of the night, BUPD’s action fell squarely within their extended

       jurisdiction of providing aid to members of the community.


[27]   Moreover, even without Butler’s Trustees Resolution, which extended BUPD’s

       jurisdiction outside its campus in certain instances, we would still uphold the

       trial court’s denial of Jones’ motion to suppress. In Morris v. State, 43 N.E.3d

       692, 694 (Ind. Ct. App. 2015), where a Marian University police officer

       effectuated a vehicle stop outside his jurisdiction, we concluded that:

               Evidence should be suppressed only if it can be said that the law
               enforcement officer had knowledge or may properly be charged
               with knowledge, that the search was unconstitutional under the
               Fourth Amendment. . . . [S]uppression is appropriate only where
               police acts are sufficiently culpable and suppression can
               meaningfully deter those acts. The good-faith inquiry is confined
               to the objectively ascertainable question whether a reasonably
               well trained officer would have known that the search was illegal
               in light of all the circumstances.


       Id. at 696 (ellipses in original) (quoting Shotts v. State, 925 N.E.2d 719, 724 (Ind.

       2010). See also Zavala v. State, 739 N.E.2d 135, 140 (Ind. Ct. App. 2000)

       (“Generally, unless a statute expressly provides otherwise, the exclusionary rule

       is not available as a remedy for a violation of the statute.”), trans. denied. The

       evidence before us establishes that the BUPD officers’ actions were not

       instigated based on a search for criminal evidence but rather, they acted out of a



       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 15 of 16
       good faith belief that they were rendering aid to members of the community by

       checking on the children.


                                                CONCLUSION

[28]   Based on the foregoing, we conclude that (1) the warrantless search of Jones’

       residence is justified based on the exigent circumstances to conduct a welfare

       check on three minor children left unattended in the home in the middle of the

       night; (2) the officers permissibly entered the basement because the children

       were not yet located; and (3) BUPD’s action fell within the extended

       jurisdiction provide by the Trustees Resolution. Therefore, we affirm the trial

       court’s denial of Jones’ motion to suppress.


[29]   Affirmed.


[30]   Najam, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 49A02-1508-CR-1148 | May 17, 2016   Page 16 of 16
