MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                            Dec 11 2019, 10:07 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Denise L. Turner                                        Curtis T. Hill, Jr.
DTurner Legal LLC                                       Attorney General of Indiana
Indianapolis, Indiana
                                                        Jesse R. Drum
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Alexis Flynn,                                           December 11, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1958
        v.                                              Interlocutory Appeal from the
                                                        Lawrence Superior Court
State of Indiana,                                       The Honorable William G. Sleva,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        47D02-1810-F5-1600



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019                 Page 1 of 7
                                          Case Summary
[1]   Police responded to a domestic disturbance at Alexis Flynn’s apartment on

      October 1, 2018. While there, officers conducted a protective sweep of the

      apartment for the purpose of confirming that it was safe and that any threat to

      Flynn was abated. Once inside, they observed contraband sitting in plain view.

      The officers immediately exited the apartment and obtained a search warrant.

      After obtaining a search warrant, the officers re-entered and conducted a search

      of the apartment, finding drug paraphernalia, methamphetamine, and

      marijuana. The State subsequently charged Flynn with Level 5 felony

      possession of methamphetamine, Level 6 felony neglect of a dependent, Class B

      misdemeanor possession of marijuana, and Class C misdemeanor possession of

      paraphernalia. Prior to trial, Flynn moved to suppress the evidence recovered

      during the search of her apartment. This interlocutory appeal follows the denial

      of Flynn’s motion to suppress. We affirm.



                            Facts and Procedural History
[2]   On October 1, 2018, members of the Indiana State Police and the Mitchell

      Police Department, including Mitchell Police Sergeant Michael Williams,

      responded to a domestic disturbance at Flynn’s apartment. Upon arriving at

      the apartment, Sergeant Williams made contact with Flynn. Flynn indicated

      that she “and her male half had gotten into an argument.” Ex. Vol. p. 7. Flynn

      “didn’t know where the male was located. She thought he could possibly be in

      the residence, and then she said he might not be and she kept going back and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019   Page 2 of 7
      forth on her answers.” Ex. Vol. p. 7. Sergeant Williams approached the

      apartment and noticed that “the door was cracked open slightly.” Ex. Vol. p. 7.

      He could hear a television on inside. Sergeant Williams “knocked on the door

      and made an announcement” identifying himself and the other responding

      officers as police officers. Ex. Vol. p. 7. The officers “then went into the

      residence to perform a protective sweep to make sure that the individual was

      not in the residence.” Ex. Vol. p. 7. During the sweep of the apartment, the

      officers observed, in plain view, “two methamphetamine smoking pipes” and

      what appeared to be a scale in the living room. Ex. Vol. p. 7.


[3]   The officers immediately exited the apartment, and Sergeant Williams

      requested permission from Flynn to search the apartment. Flynn declined, so

      Sergeant Williams obtained a search warrant. During the subsequent search,

      the officers recovered the above-mentioned paraphernalia and found

      methamphetamine and marijuana as well.


[4]   On October 2, 2018, the State charged Flynn with Level 5 felony possession of

      methamphetamine, Level 6 felony neglect of a dependent, Class B

      misdemeanor possession of marijuana, and Class C misdemeanor possession of

      paraphernalia. On January 3, 2019, Flynn filed a motion to suppress “all

      statements made by [Flynn] and any evidence collected as a result of” the

      search of the apartment. Appellant’s App. Vol. II p. 28. The trial court

      conducted a hearing on Flynn’s motion on July 2, 2019. On August 14, 2019,

      the trial court denied Flynn’s motion to suppress. At Flynn’s request, the trial

      court certified the matter for interlocutory appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019   Page 3 of 7
                                Discussion and Decision
[5]   Flynn challenges the denial of her motion to suppress. “In reviewing a trial

      court’s ruling on a motion to suppress, we determine whether substantial

      evidence of probative value exists to support the trial court’s ruling.” Duran v.

      State, 930 N.E.2d 10, 14 (Ind. 2010). “We do not reweigh the evidence and

      consider conflicting evidence most favorably to the trial court’s ruling.” Id.


[6]   The Fourth Amendment to the United States Constitution protects 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.


      “The Fourth Amendment protection against unreasonable search and seizure

      has been extended to the states through the Fourteenth Amendment.” Weis v.

      State, 800 N.E.2d 209, 213 (Ind. Ct. App. 2003).


[7]           The United States Supreme Court has said that the physical entry
              of the home is the chief evil against which the wording of the
              Fourth Amendment is directed. The fundamental purpose of the
              Fourth Amendment is to protect the legitimate expectations of
              privacy that citizens possess in their persons, their homes and
              their belongings. Thus, searches and seizures inside a home
              without a warrant are presumptively unreasonable.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019   Page 4 of 7
      Id. (internal quotations omitted). “However, on occasion the public interest

      demands greater flexibility than is offered by the constitutional mandate of the

      warrant requirement.” State v. Straub, 749 N.E.2d 593, 597 (Ind. Ct. App.

      2001) (internal quotation omitted). “Accordingly, there are some carefully

      delineated exceptions to the warrant requirement.” McDermott v. State, 877

      N.E.2d 467, 473 (Ind. Ct. App. 2007). “One exception allows police to

      dispense with the warrant requirement in the presence of exigent

      circumstances.” Holder v. State, 847 N.E.2d 930, 936 (Ind. 2006). “The warrant

      requirement becomes inapplicable where the exigencies of the situation make

      the needs of law enforcement so compelling that the warrantless search is

      objectively reasonable under the Fourth Amendment.” Id. at 936–37.


[8]   “Among the well-known exigent circumstances that have justified a warrantless

      search or seizure are entries (1) to prevent bodily harm or death; (2) to aid a

      person in need of assistance; (3) to protect private property; and (4) to prevent

      actual or imminent destruction or removal of incriminating evidence before a

      search warrant may be obtained.” McDermott, 877 N.E.2d at 474.


              A 911 call generally details emergency or exigent circumstances
              requiring swift police action. In these cases, the officers are
              responding to rapidly changing or escalating events, and their
              initial response is often based on limited information. The
              officers cannot properly assess the complaint and the dangers to
              those threatened without some limited access to the involved
              parties. It is unrealistic to expect officers to wait for threats to
              escalate and for violence to become imminent before intervening.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019   Page 5 of 7
       Barnes v. State, 946 N.E.2d 572, 577 (Ind. 2011), adhered to on reh’g, 953 N.E.2d

       473 (Ind. 2011).


[9]    In Lundquist v. State, 834 N.E.2d 1061, 1068 (Ind. Ct. App. 2005), police

       responded to two 911 calls for a domestic disturbance. When officers arrived,

       they were informed by the alleged victims that Lundquist, the perpetrator, was

       thought to be hiding on the property. Id. at 1068–69. Given the nature of the

       emergency calls, officers completed a protective sweep of the property in an

       attempt to locate Lundquist. Id. at 1069. While conducting this sweep, officers

       found marijuana plants growing near the house. Id. Upon review, we noted

       that “[a]lthough [the officers] invaded the curtilage of Lundquist’s residence,

       [their] intention in doing so was not to search for marijuana, but merely to find

       Lundquist. Moreover, the deputies reasonably believed Lundquist was hiding

       on the property.” Id.


[10]   Similarly, in this case, when the officers entered Flynn’s apartment, their

       intention was not to search for drugs or contraband, but merely to ensure

       Flynn’s safety by finding the co-participant in the domestic disturbance, who

       they reasonably believed could be hiding in the apartment. Again, the officers

       responded to Flynn’s apartment because of a reported domestic disturbance.

       When they arrived, they were informed that the co-participant in the domestic

       disturbance “could possibly be in the residence” but “he might not be.” Ex.

       Vol. p. 7. Reasonably believing that Flynn’s co-participant in the dispute could

       be inside the apartment, the officers conducted a protective sweep of the

       apartment. They entered the apartment for the sole purpose of confirming that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019   Page 6 of 7
       the apartment was safe and that any threat to Flynn was abated. Once inside

       the apartment, the officers observed contraband in plain view. They then

       immediately stopped their protective sweep, exited the apartment, and obtained

       a search warrant. Only after obtaining the search warrant did officers re-enter

       and search the apartment.


[11]   We believe that the officers acted reasonably in their efforts to protect Flynn

       from potential harm. The facts of this case created an exigent circumstance

       sufficient to justify the officers’ warrantless entry into Flynn’s apartment. As

       such, we conclude that substantial evidence of probative value exists to support

       the trial court’s ruling and affirm the trial court’s denial of Flynn’s motion to

       suppress.1


[12]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       1
         We are unconvinced by Flynn’s claim that officers may only conduct a protective sweep following an
       arrest. While a protective sweep may, under some circumstances, be an acceptable way to ensure public and
       officer safety following an arrest, in this case, the protective sweep was intended to ensure Flynn’s safety after
       she was reportedly involved in a domestic disturbance. Requiring officers to refrain from attempting to locate
       the co-participant in the domestic disturbance until an arrest has been made would be impractical and
       contrary to the general public policy of ensuring the safety of individuals involved in such disturbances.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1958 | December 11, 2019                     Page 7 of 7
