FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:


JOHN ANDREW GOODRIDGE                       GREGORY F. ZOELLER
Evansville, Indiana                         Attorney General of Indiana

                                            MICHAEL GENE WORDEN
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                                                          FILED
                                                                    Oct 02 2012, 9:28 am

                            IN THE
                                                                            CLERK
                  COURT OF APPEALS OF INDIANA                             of the supreme court,
                                                                          court of appeals and
                                                                                 tax court




MOISE JOSEPH,                               )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )       No. 82A05-1108-CR-387
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


              APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                       The Honorable Carl A. Heldt, Judge
                     The Honorable Kelli E. Fink, Magistrate
                         Cause No. 82C01-1007-FA-869



                                  October 2, 2012


                            OPINION - FOR PUBLICATION


BRADFORD, Judge
        In the instant matter we are faced with the troublesome situation of reviewing an

individual’s convictions relating to an unspeakable crime in light of an apparent violation of

the convicted individual’s Fourth Amendment rights. In reviewing this matter, we must

consider to what extent certain statements made by the convicted individual must be

suppressed following an episode of police misconduct.

        Appellant-Defendant Moise Joseph appeals following his convictions for Class A

felony burglary resulting in serious bodily injury,1 Class B felony attempted armed robbery,2

and Class B felony criminal confinement.3 In appealing his convictions, Joseph argues that

the trial court abused its discretion in admitting certain statements that he made to a police

detective during an interview that occurred following the illegal and warrantless entry into

and search of his apartment by police officers. Concluding that the trial court abused its

discretion in admitting Joseph’s statements to the police detective, we reverse.

                           FACTS AND PROCEDURAL HISTORY4

        At approximately 9:30 a.m. on July 16, 2010, police were called to a Sonic Drive-In in

Evansville to investigate two suspicious vehicles. The vehicles were parked, with their

license plates pointing away from the restaurant, in the area of the Sonic parking lot

commonly used by restaurant staff. Evansville Police Officer Gerald Collins responded to


        1
            Ind. Code § 35-43-2-1 (2010).
        2
            Ind. Code § 35-42-5-1(1) (2010).
        3
            Ind. Code §§ 35-42-3-3(a)(1) and 35-42-3-3(b)(2)(A) (2010).
        4
           We heard oral argument in this matter on August 21, 2012, and wish to thank counsel for the high
quality of their presentations.

                                                    2
the call. After arriving at the Sonic, Officer Collins ran the license plates on the vehicles and

learned that neither vehicle had been reported stolen. During the course of running the

vehicles’ license plates, Officer Collins learned that one of the vehicles was registered to

Joseph, and he was provided with Joseph’s address. The vehicles remained in the Sonic

parking lot until approximately 11:00 a.m., when three men returned and hurriedly drove

them away.

       Earlier that day, at approximately 7:30 a.m., Larry Matthew Moore and Heather

Reeves left the residence Moore shared with his girlfriend, Megan Darr. Moore’s home was

located in Evansville near the Sonic. At some point during the morning, Darr was awakened

when someone jumped on her in bed, wrapped a blanket around her head, and asked,

“[W]here’s the money at?”. Tr. p. 372. When Darr attempted to break free, the person struck

her on the head with a gun. Darr, who had recently learned that she was pregnant, became

scared and had trouble breathing. At some point, Darr noticed that there were other people in

the home. She also saw that the person on top of her was a black male and that he was, in

fact, wielding a gun. Darr continued to struggle with the man who struck her several more

times with the gun. The man told Darr that she should not struggle because his gun had “a

hairy f’ing trigger.” Tr. p. 376. Eventually, the man threw Darr on the floor, and after Darr

pleaded with him to stop because she was pregnant, kicked her in the ribs, tied her up, and

placed her in a closet with a blanket over her head.

       Moore returned home, again with Reeves, at approximately 9:30 a.m. When Moore

and Reeves returned to Moore’s home, they encountered the three men who had invaded the


                                               3
home. One of the men grabbed Reeves and pulled her into the home. Moore escaped and

ran to a nearby business to call the police. After pulling Reeves inside, the three men fled the

home. Police officers arrived at the home shortly thereafter. Darr was transported to the

hospital for treatment. The home had been completely ransacked, and various items were

missing.

       Because of the timing of the invasion of Moore’s home, the close proximity of the

home to the Sonic, and his knowledge that Joseph had a gun permit, Evansville Police

Officer Raymond Michael Winters went to the apartment complex where Joseph lived.

Officer Winters acknowledged that, at the time, he did not know anything about the home

invasion, except that there had been one. Officer Winters was joined at the apartment

complex by other officers, including Officer Dan Hoehn. Officer Winters located the

apartment complex manager, who let Officers Winters and Hoehn into Joseph’s apartment.

The officers handcuffed Joseph, read him his Miranda5 advisements, and asked him about his

whereabouts earlier that morning. After being told by the officers that they knew that his

vehicle had been at the Sonic, Joseph indicated that he had been approached by two men

about purchasing an X-Box gaming system for five dollars. During a search of Joseph’s

apartment, officers recovered guns and other items of interest relating to their investigation

into the home invasion. However, it is unclear from the record whether any of these items

were found to have any connection to the home invasion.




       5
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                   4
       After arriving on the scene, Evansville Police Detective Ron Brown asked Joseph,

who was still handcuffed, whether he would be willing to go to the police station to answer a

few questions. Joseph answered in the affirmative. Joseph was then transported to the police

station by Officer Winters. Upon arriving at the police station, Detective Brown again read

Joseph his Miranda advisements before questioning him about the evidence recovered from

his home and his knowledge of the home invasion. Joseph repeated his earlier statement

about the X-Box gaming system, but denied being involved in the home invasion.

       On June 20, 2010, the State charged Joseph with Class A felony burglary resulting in

bodily injury, Class B felony attempted armed robbery, and Class B felony criminal

confinement. Joseph filed a motion to suppress all evidence recovered during the search of

his apartment as well as his statements to Officers Winters and Hoehn and Detective Brown.

Following a hearing, the trial court suppressed all evidence recovered from Joseph’s

apartment as well as his statements to Officers Winters and Hoehn. The trial court denied the

motion with respect to Joseph’s statements to Detective Brown. A jury trial commenced on

April 11, 2011, after which the jury found Joseph guilty as charged. On July 1, 2011, the trial

court sentenced Joseph to an aggregate term of twenty-six years of incarceration. This appeal

follows.

                             DISCUSSION AND DECISION

       Joseph contends that the trial court abused its discretion in admitting the statements

that he made to Detective Brown following the warrantless entry into and search of his

apartment by Officers Winters and Hoehn. Specifically, Joseph argues that his statements to


                                              5
Detective Brown constitute “fruit of the poisonous tree” and, therefore, were inadmissible at

trial.6

                                         A. Standard of Review

                 Our standard of review for rulings on the admissibility of evidence is
          essentially the same whether the challenge is made by a pre-trial motion to
          suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
          75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
          evidence, and we consider conflicting evidence most favorable to the trial
          court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
          trans. denied. We also consider uncontroverted evidence in the defendant’s
          favor. Id.

Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007).

          A trial court has broad discretion in ruling on the admissibility of evidence.

Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw v. State,

759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will reverse a trial court’s

ruling on the admissibility of evidence only when the trial court abused its discretion. Id.

(citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is

clearly against the logic and effect of the facts and circumstances before the court. Id. (citing

Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000)).

                                                B. Analysis

                                     1. The Fourth Amendment

          On appeal, Joseph claims that the warrantless entry into and search of his apartment by


          6
          On appeal, Joseph frames his argument as a challenge to the constitutionality of the warrantless entry
of his apartment under the Fourth Amendment to the United States Constitution. Joseph does not make a
separate argument under Article 1, Section 11 of the Indiana Constitution. As such, any claim of error under
the Indiana Constitution is consequently waived. See Davis v. State, 907 N.E.2d 1043, 1048 n.10 (Ind. Ct.
App. 2009).

                                                       6
Officers Winters and Hoehn violated the Fourth Amendment to the United States

Constitution.

       The fundamental purpose of the Fourth Amendment to the United States
       Constitution is to protect the legitimate expectations of privacy that citizens
       possess in their persons, their homes, and their belongings. Taylor v. State,
       842 N.E.2d 327, 330 (Ind. 2006) (citing Ybarra v. Illinois, 444 U.S. 85, 91,
       100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). The principal protection against
       unnecessary intrusions into private dwellings is the warrant requirement
       imposed by the Fourth Amendment and, therefore, searches and seizures inside
       a home without a warrant are presumptively unreasonable. Alspach v. State,
       755 N.E.2d 209, 212 (Ind. Ct. App. 2001), trans. denied. The State bears the
       burden of proving that a warrantless search falls within an exception to the
       warrant requirement. Taylor, 842 N.E.2d at 330. Whether a particular
       warrantless search violates the guarantees of the Fourth Amendment depends
       on the facts and circumstances of each case. Rush v. State, 881 N.E.2d 46, 50
       (Ind. Ct. App. 2008).

Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010).

       The existence of exigent circumstances falls within an exception to the warrant

requirement. Id. (citing Holder v. State, 847 N.E.2d 930, 936 (Ind. 2006)). In other words,

the warrant requirement becomes inapplicable when 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. (quotations omitted). Under the exigent circumstances

exception, police may enter a residence without a warrant if the situation suggests a

reasonable belief that someone inside the residence is in need of aid. Id. (citing Smock v.

State, 766 N.E.2d 401, 404 (Ind. Ct. App. 2002)). However, an officer’s subjective belief

that exigent circumstances exist is insufficient to justify a warrantless entry. Id. (citing

Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2004)). Rather, the test is objective,

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

                                             7
entry would lead a reasonable, experienced law enforcement officer to believe that someone

inside the house required immediate assistance. Id. (citing Cudworth, 818 N.E.2d at 137).

       “Moreover, ‘while exigent circumstances justify dispensing with a search warrant,

they do not eliminate the need for probable cause.’” Id. (quoting Cudworth, 818 N.E.2d at

137). The probable cause element may be satisfied where the officers reasonably believe that

a person is in danger. Id. (citing Cudworth, 818 N.E.2d at 137). “‘The burden is on the

government to demonstrate exigent circumstances that overcome the presumption of

unreasonableness that attaches to all warrantless home entries.’” Id. at 579-80 (quoting

McDermott v. State, 877 N.E.2d 467, 474 (Ind. Ct. App. 2007)).

       Here, the State concedes that the warrantless entry into and search of Joseph’s

apartment by Officers Winters and Hoehn “may well have been without probable cause and

therefore in violation of [Joseph’s] rights under the Fourth Amendment.” Appellee’s Br. p.

8. Moreover, the State does not point to any exigent circumstances that it asserts would

overcome the presumption of unreasonableness attached to Officer Winters’s and Hoehn’s

warrantless entry into and search of Joseph’s apartment. Thus, in light of the State’s

concession that Officers Winters and Hoehn lacked probable cause to search Joseph’s

apartment, together with its failure to point to any exigent circumstances sufficient to

overcome the presumption of unreasonableness attached to the warrantless entry into and

search of Joseph’s apartment, we conclude that the warrantless entry into and search of

Joseph’s apartment violated Joseph’s rights under the Fourth Amendment.

              2. The Exclusionary Rule and the Doctrine of Attenuation


                                             8
       Having concluded that the search of Joseph’s apartment violated Joseph’s rights under

the Fourth Amendment, we must next consider whether Joseph’s comments to Detective

Brown were sufficiently attenuated to dissipate any taint of the illegal search. “The

exclusionary rule is a judicially created remedy designed to safeguard the right of the people

to be free from ‘unreasonable searches and seizures.’” Trotter, 933 N.E.2d at 581 (quoting

U.S. v. Calandra, 414 U.S. 338, 348 (1974)). “The main purpose of the exclusionary rule ‘is

to deter future unlawful police conduct’ and, thus, evidence obtained through an illegal

search and seizure is inadmissible at trial.” Id. (quoting Calandra, 414 U.S. at 347). While it

is true that evidence stemming from an illegal arrest or entry may be excluded upon proper

motion by the defendant, see Snellgrove v. State, 569 N.E.2d 337, 341 (Ind. 1991), this court

has recognized that “[n]ot all evidence is fruit of the poisonous tree and subject to suppress

simply because it would not have come to light but for illegal police activity.” State v.

Foster, 950 N.E.2d 760, 763 (Ind. Ct. App. 2011), trans. denied.

               Fourth Amendment jurisprudence has recognized an exception to the
       exclusionary rule in cases where the connection between the illegal police
       conduct and the subsequent discovery of evidence “become[s] so attenuated
       that the deterrent effect of the exclusionary rule no longer justifies its cost.”
       Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)
       (Powell, J., concurring). Specifically, “[i]n some situations, the causal chain is
       sufficiently attenuated to dissipate any taint of [the illegal police activity],
       allowing the evidence seized during a search to be admitted.” Cole v. State,
       878 N.E.2d 882, 887 (Ind. Ct. App. 2007). This is known as the attenuation
       doctrine. See Quinn v. State, 792 N.E.2d 597, 601 (Ind. Ct. App. 2003) (citing
       Brown, 422 U.S. 590, 603-04, 95 S.Ct. 2254), trans. denied.

Trotter, 933 N.E.2d at 581. Put another way, attenuation simply means that the connection

between the illegal police conduct and Joseph’s statements has become so weakened in force,


                                               9
intensity, and effect that the taint of the illegal police conduct has been dissipated. See

Foster, 950 N.E.2d at 762.

       The State argues that despite the unconstitutional nature of Officers Winters’s and

Hoehn’s entry into and search of Joseph’s apartment, the trial court properly admitted

Joseph’s statements to Detective Brown pursuant to the doctrine of attenuation.

       Cases have established that three factors should be considered in determining
       whether the connection has become too weak: (1) the time elapsed between the
       illegality and the acquisition of the evidence; (2) the presence of intervening
       circumstances; and (3) the purpose and flagrancy of the official misconduct.
       See, e.g., Turner v. State, 862 N.E.2d 695, 701 (Ind. Ct. App. 2007). The
       important consideration in the third factor is whether the evidence came from
       the “‘exploitation of that illegality or instead by means sufficiently
       distinguishable to be purged of the primary taint.’” [Quinn, 792 N.E.2d at
       600] (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407,
       417, 9 L.Ed.2d 441 (1963)).

Foster, 950 N.E.2d at 763. It is also important to consider whether officers have given

Miranda warnings to a defendant when determining whether the statement or confession was

the product of an illegal arrest. Snellgrove, 569 N.E.2d at 341-42.

       In Snellgrove, following a wave of armed robberies, police detectives entered

Snellgrove’s home without a warrant and arrested him and his fiancée. Id. at 339.

Snellgrove was read his Miranda advisements and taken to the police station. Id. At the

stationhouse, Snellgrove was again read his Miranda advisements. Id. Snellgrove indicated

that he understood his rights and that he did not wish to speak to the detectives. Id.

Eventually, Snellgrove was informed that his fiancée was cooperating with the detectives and

was told what she had said to the detectives concerning the robberies. Id. Snellgrove

subsequently told the detectives about his involvement in the robberies. Id. Snellgrove was

                                             10
charged with and convicted of four counts of Class B felony armed robbery. Id. at 338.

Snellgrove challenged the admissibility of his confession, claiming that it was derived from

his illegal arrest. Id. at 339.

       Upon review, the Indiana Supreme Court held that Snellgrove was correct in his

assertion that his arrest was carried out in an unlawful manner. Id. at 340. In determining

whether Snellgrove’s subsequent confession was “fruit[] of such illegality[,]” the Court noted

that prior to giving his confession, Snellgrove was read his Miranda advisements three times.

Id. at 342. The Court determined that, based on the facts at issue, the illegal police activity

did not rise to the level of purposeful or flagrant police misconduct because the police had

probable cause to obtain a warrant for Snellgrove’s arrest in connection to the robberies. Id.

       As to the temporal proximity, the Court noted that this factor could be an ambiguous

one. Id. The Court determined that the approximately four hours that elapsed between

Snellgrove’s arrest and his confession were such that “carries some small weight, certainly

not decisive, tending to dissipate the taint of the illegality” and could be considered with the

other factors. Id. The Court further determined that the record did not disclose the presence

of significant intervening circumstances. Id. After balancing these factors, the Court

concluded that Snellgrove’s decision to confess was an act of his free will and not the

product of his illegal arrest. Id. at 343.

       In Foster, police detectives entered Foster’s apartment without a warrant and

handcuffed him. 950 N.E.2d at 761. One of the detectives read Foster his Miranda

advisements and transported him to the police station. Id. While en route to the police


                                              11
station, Foster made inculpatory statements. Id. At the station, he was again read his

Miranda advisements. Id. Foster signed a waiver of his rights and submitted to questioning

by the detectives, during which time he made additional inculpatory statements. Id. After

questioning Foster, the detectives sought and obtained a warrant for his arrest. Id. Foster

was charged with Class A felony dealing in cocaine. Id. Foster sought to suppress his

statements as evidence that stemmed from his illegal arrest following the detectives’ illegal

entry into his apartment. Id.

       Upon review, we noted that very little time lapsed between the arrest and the

admissions made in the police car and at the police station, and that there is “little doubt that

[defendant’s] statements came from the exploitation of the unlawful arrest.” Id. at 763. The

State argued that the giving of Miranda advisements constituted a valid intervening

circumstance. Id. We disagreed and concluded that, like in Turner, “‘[g]iven the near-

constant interaction between [the defendant] and the police that evening, we cannot say that

the connection between the illegal [police activity] and [defendant’s] confession had been

attenuated sufficiently.’” Id. (quoting Turner, 862 N.E.2d at 702). We concluded that

because the connection between the arrest and the securing of statements disclosed near

constant interaction and exploitation of the arrest, a finding of attenuation was precluded, and

as such, the trial court properly excluded Foster’s statements to police. Id.

       Here, the State concedes that Officers Winters and Hoehn entered into and searched

Joseph’s apartment without a warrant in violation of the Fourth Amendment. The State

further concedes that unlike in Snellgrove, Officers Winters and Hoehn did not have probable


                                               12
cause to believe that Joseph was involved in the home invasion when they entered into and

searched his apartment. The record demonstrates that upon entering Joseph’s apartment,

Officers Winters and Hoehn read Joseph his Miranda advisements before speaking to Joseph.

Officers Winters and Hoehn claim that Joseph agreed to go to the police station for

questioning after he made an inculpatory statement regarding his whereabouts earlier that

morning.7     Upon arriving at the police station, Joseph was again read his Miranda

advisements. Joseph gave a statement to Detective Brown regarding his actions that morning

and denied any involvement in the home invasion. Joseph did not express any reluctance to

speak with Officers Winters and Hoehn or Detective Brown.

        Joseph claims that his statements to Detective Brown should be excluded because the

statements were tainted by the illegal entry into and search of his apartment by Officers

Winters and Hoehn. Specifically, Joseph claims that he remained handcuffed continuously

from the first moment Officers Winters and Hoehn entered his home (with the exception of

the few minutes that he was taken outside for a potential witness identification) and was soon

thereafter transported to the police station. Detection Brown questioned Joseph about his

prior statements to Officers Winters and Hoehn as well as certain pieces of evidence found in

Joseph’s apartment. By this time, Joseph argues that the “cat was already out of the bag.”

Appellant’s App. p. 19. Joseph argues that the record is “woefully lacking” of any

intervening circumstances upon which the trial court could have properly determined that his


        7
            Again, this statement, like the evidence recovered from Joseph’s apartment, was suppressed by
the trial court and not admitted into evidence at trial.


                                                   13
decision to submit to an interrogation was an act of free will rather than the product of his

illegal arrest. Thus, Joseph claims that the trial court abused its discretion in admitting his

statement to Detective Brown into evidence at trial.

       For its part, the State claims that Joseph’s statements to Detective Brown were

sufficiently attenuated to dissipate any taint of the illegal police activity.8 In support, the

State points out that like in Snellgrove, Joseph was read his Miranda advisements on multiple

occasions following the illegal police entry into his apartment and before questioning by

Detective Brown. The State cites to Snellgrove and asserts that, while not the only factor, the

fact that Joseph was given his Miranda advisements is an important factor demonstrating that

his statements were not the product of the illegal police conduct.

       The State also points to the fact that approximately four hours had elapsed between

the initial illegal entry and Joseph’s statements to Detective Brown. The State acknowledges

that the temporal proximity factor may be of minor significance, but notes that in Snellgrove,

the Indiana Supreme Court held that while the temporal proximity factor is somewhat

ambiguous and insignificant, the fact that the search occurred within four hours of the illegal

conduct did not render the attenuation doctrine inapplicable. See 569 N.E.2d at 342. Further,

while the State acknowledges that the warrantless entry into and search of Joseph’s home by

Officers Winters and Hoehn was illegal as it was in violation of the Fourth Amendment, the

State claims that the fact that Joseph’s statements were made at the police station rather than


       8
            The State has not argued that the admission of Joseph’s statements to Detective Brown was
harmless.


                                                  14
at his home is an additional intervening circumstance that would tend to indicate that his

statements were sufficiently attenuated from the illegal police conduct.

       The record indicates that while Joseph was given his Miranda advisements at least

two times and was transported to the police station prior to making his statements to

Detective Brown, it also indicates that Joseph was in constant police custody from the time

that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware

that their search had resulted in the discovery of potentially relevant evidence. Joseph was

questioned about this evidence by both the officers at the scene and Detective Brown at the

police station. In addition, nothing in the record indicates that Joseph had any way of

knowing that the potential evidence found in his apartment and his statements to Officers

Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown.

Based on these facts, especially the fact that Joseph was in constant police custody from the

time of their illegal entry into and search of his apartment, knew what potential evidence had

been discovered in his apartment, and had made prior potentially incriminating statements to

Officers Winters and Hoehn, we cannot conclude that Joseph’s comments to Detective

Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any

taint of the illegal police conduct. As such, we conclude that the trial court abused its

discretion in admitting Joseph’s statements to Detective Brown at trial.

       The judgment of the trial court is reversed.

FRIEDLANDER, J., and BARNES, J., concur.




                                             15
