MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 12 2018, 9:53 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Means,                                              July 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1711-CR-2701
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Peggy Ryan Hart,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G05-1702-F4-5409



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018              Page 1 of 13
[1]   John Means appeals his conviction for Level 4 Felony Unlawful Possession of a

      Firearm by a Serious Violent Felon.1 Means argues that the trial court

      erroneously admitted evidence stemming from the execution of an arrest

      warrant that he maintains violated his federal and state constitutional rights.

      Finding no error, we affirm.


                                                     Facts
[2]   On February 6, 2017, Marion County Sheriff’s Deputy Ernest Waterman,

      Deputy Ryan Tunny, and Lieutenant Lewis Perrine went to 539 North Gray

      Street in Indianapolis to serve an arrest warrant on Terry Edwards. The

      address was provided in a warrant packet created by analysts from the

      intelligence unit of the Sheriff’s Office.


[3]   Deputy Waterman and Lieutenant Perrine went to the front door, while Deputy

      Tunny went behind the house. Deputy Waterman knocked on the front door,

      announced that he was an officer, stated that he had a warrant, and said that

      someone should open the door. At that point, Deputy Waterman “heard a

      bunch of what sounded like people running inside, jumping around.” Tr. Vol.

      II p. 13. After the knock, Deputy Tunny heard “the sound of something being

      put up against the side door” as a barricade and heard someone inside the




      1
          Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 2 of 13
      house say, “F*ck, the cops are here.” Id. at 168, 178. Approximately ten

      minutes after the first knock, someone in the house opened the front door.


[4]   Deputy Waterman and Lieutenant Perrine looked inside the house and saw five

      people, one of whom was later identified as Means, sitting on a couch.

      Edwards was not among the group. The five people fidgeted in their seats and

      moved their hands. The officers ordered everyone to show them their hands

      but one person kept moving their hands around. The officers placed all five

      individuals in handcuffs.


[5]   The officers then proceeded to search the house for Edwards. They did not find

      Edwards, but Deputy Waterman and Lieutenant Perrine did find, in plain sight,

      a gallon bag of synthetic marijuana, two bags of marijuana, a scale, and other

      drug paraphernalia. Deputy Waterman then contacted Indianapolis

      Metropolitan Police Detective Zachary Mauer, who works in the narcotics unit.


[6]   Upon arrival, Detective Mauer first questioned the individuals in handcuffs.

      They all claimed that they did not live there and did not know who the owner

      was. Detective Mauer then began to prepare an application for a warrant to

      search the home. As Mauer was typing the application, Deputy Waterman

      tripped over a vent grate on the floor, looked down, and saw a handgun. The

      search warrant was granted, and after a complete search of the home, deputies

      found two additional handguns, including a Glock 27, and small baggies of

      marijuana.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 3 of 13
[7]    On February 9, 2017, the State charged Means with Level 4 felony unlawful

       possession of a firearm by a serious violent felon; Level 5 felony possession of a

       narcotic drug; Level 6 felony dealing in marijuana; Level 6 felony dealing in a

       synthetic drug or synthetic drug lookalike substance; Level 6 felony possession

       of marijuana; and Class A misdemeanor possession of a synthetic drug or

       synthetic drug lookalike substance.


[8]    On February 10, 2017, at Means’s initial hearing, the judge found no probable

       cause and ordered Means released. After his release order had been signed,

       Means was waiting in the book-out area of the jail. As he waited, he shouted

       across the room to another inmate that “he had a Glock 27 but they couldn’t

       charge him with it.” Tr. Vol. III p. 34. Marion County Sheriff’s Deputy

       Jedediah Capps overheard this statement and told Means, “you know you just

       admitted to a police officer, to a deputy.” Id. at 35. Deputy Capps testified that

       Means replied, “I don’t care, I’m getting out anyway.” Id.


[9]    Deputy Capps contacted Detective Mauer and told him what Means had said.

       Detective Mauer amended the probable cause affidavit and requested that

       Means be held in custody. The trial court granted the amended affidavit’s

       request and Means was held pending bond. On February 15, 2017, the judge

       found probable cause to proceed with the case.


[10]   On April 17, 2017, Means filed a motion to suppress, arguing that he was

       improperly seized after the officers illegally executed the arrest warrant. He

       claimed that all the evidence discovered as a result of this illegal entry should be


       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 4 of 13
       suppressed. On May 31, 2017, the trial court orally denied Means’ motion to

       suppress.


[11]   Before trial, the State dismissed all charges except for Level 4 felony possession

       of a handgun by a serious violent felon. Following Means’s October 19, 2017,

       jury trial, the jury found Means guilty as charged. On October 31, 2017, the

       trial court imposed a ten-year sentence. Means now appeals.


                                    Discussion and Decision
[12]   Means argues that the trial court erred by denying his motion to suppress the

       evidence, but because he is appealing following a completed trial, the issue is

       properly framed as an argument regarding the admission of the evidence at

       trial. E.g., Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). We will only

       reverse a trial court’s ruling on admission of evidence if the decision is clearly

       against the logic and effect of the facts and circumstances before the court. D.F.

       v. State, 34 N.E.3d 686, 688 (Ind. Ct. App. 2015). In conducting our review, we

       will neither reweigh the evidence nor assess witness credibility, but we apply a

       de novo standard of review to matters of law. Id. In other words, when a

       defendant contends that the trial court admitted evidence alleged to have been

       discovered as the result of an illegal search or seizure, an appellate court will

       generally assume the trial court accepted the evidence as presented by the State

       and will not reweigh that evidence, but we owe no deference as to whether that

       evidence established the constitutionality of the search or seizure. Id. at 689.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 5 of 13
                                      I. Fourth Amendment
[13]   Means argues that he was seized as the result of an unconstitutional execution

       of Edwards’s arrest warrant. The State first responds that Means does not have

       standing to raise this argument because he had no reasonable expectation of

       privacy in the house that was searched; Means counters that because he was

       seized pursuant to the arrest warrant, he has standing to challenge it. We will

       assume for argument’s sake that Means has standing to raise a Fourth

       Amendment claim.


[14]   Means first argues that the execution of the arrest warrant was illegal because

       the warrant was based on faulty and insufficient information. The Fourth

       Amendment protects people from unreasonable search and seizure. U.S.

       Const. amend. IV. With respect to arrest warrants,


               the police may not enter a home by force to make a “routine”
               arrest without a warrant. An arrest warrant founded on probable
               cause gives the police “limited authority to enter a dwelling in
               which the suspect lives when there is reason to believe the
               suspect is within.” The belief is judged on the information
               available to the officers at the time of entry and need not prove to
               have been correct in hindsight.


       Duran v. State, 930 N.E.2d 10, 15 (Ind. 2010) (internal citations omitted)

       (quoting Payton v. New York, 445 U.S. 573, 603 (1980)). It is generally accepted

       that “reason to believe” involves something less than probable cause. Id.

       Police officers must have a reasonable belief that the dwelling is the residence of



       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 6 of 13
       the subject of the warrant and that the subject is present at the time the officers

       attempt to enter on authority of an arrest warrant. Id. at 16.


[15]   Here, Deputy Waterman explained that before serving a warrant, the Criminal

       Warrant Unit is given a packet of information to aid in its service. Intelligence

       analysts who work for the intelligence unit with the Marion County Sheriff’s

       Office are responsible for creating the packets of information. The packets

       generally contain the warrant itself; the subject’s name, address, picture, and

       date of birth; information about the subject’s friends and what vehicle he drives;

       and what offense the subject is being arrested for.


[16]   The packet for Edwards’s arrest contained the arrest warrant, which listed an

       address of 539 North Gray Street. On an information page also in the packet,

       this address appears again; directly to the right of this address is a heading that

       reads, “Date of Info,” and under this heading is the date “1/25/2017[.]” Tr.

       Ex. 1 p. 3.


[17]   Means contends that the warrant and the packet did not give the officers a

       reason to believe that 539 North Gray Street was Edwards’s residence or that

       Edwards would be home at the time the warrant was served. Consequently,

       Means maintains that the officers’ entry into the home violated the Fourth

       Amendment.


[18]   We do not find Means’s argument to be persuasive. The warrant and

       accompanying packet contained the same address multiple times; no other

       addresses were listed. The “Date of Info” information page indicates that the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 7 of 13
       warrant was served less than two weeks after the most recent information on

       Edwards’s address was obtained.2 As the information was consistent and not

       stale, we find that the officers had a reason to believe that Edwards was living at

       539 North Gray Street.


[19]   Means directs our attention to Duran v. State, 930 N.E.2d 10 (Ind. 2010), in

       support of his argument, but we find that case easily distinguishable from the

       present circumstances. In Duran, officers went to the address listed on an arrest

       warrant but did not find its target at that address. They then received

       information from another officer indicating that the warrant’s subject lived at a

       particular apartment complex. The information did not include the apartment

       number, however. When the officers went to the apartment complex, they

       confronted a random person leaving the building and spoke with him; that

       person indicated that the subject lived in an upstairs apartment with a green

       door. Officers did nothing to determine this person’s basis of knowledge,

       knowledge of the subject, or residency in the complex. The officers went to the

       apartment with the green door, knocked, and after receiving no response, broke

       down the door. Our Supreme Court held that under these circumstances, the

       officers had insufficient information to form a reasonable belief that the subject

       was living in the apartment into which they forcibly broke. Id. at 16-17.




       2
         Means complains that there is no evidence in the record establishing what, precisely, “Date of Info” refers
       to, and also notes that other pages of the packet indicate that it was printed on February 7, 2017—the day
       after the warrant was executed. Nonetheless, we believe it perfectly reasonable to conclude that “Date of
       Info” refers to the date on which the information—Edwards’s address—was obtained.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018              Page 8 of 13
[20]   In this case, the officers had information from their intelligence unit regarding

       the most recent (and only) address associated with Edwards. Whereas in

       Duran, the police’s information was from a random, unknown, unverified

       source, the information in this case came from an intelligence unit with the

       Marion County Sheriff’s Office. Unlike in Duran, the officers in this case were

       entitled to rely upon the information in these packets. 3 Therefore, the arrest

       warrant was based on sufficient information and its execution did not violate

       the Fourth Amendment.4


[21]   Means next argues that even if the warrant itself was valid, the officers’ seizure

       of him was unconstitutional because he was not named in the warrant. He

       notes that while caselaw holds that officers have the right to seize the occupants

       of a home in which they are executing a search warrant, there is no such

       articulated right during the execution of an arrest warrant. See Michigan v.

       Summers, 452 U.S. 692, 705 (1981) (holding that it is constitutionally

       permissible to detain the occupants of a home pursuant to a search warrant so

       that a proper search can be conducted).




       3
        Moreover, whereas in Duran, the officers knocked down the door, in this case, the officers entered after an
       occupant of the house opened the door for the officers.
       4
        Means also argues that the officers did not have a reasonable belief that Edwards would be home at the time
       of day they served the warrant. Service occurred around 9:00 p.m. on a weekday, which is a time of day
       when most people are home. It was reasonable for the officers to believe that Edwards would have been
       home at that time.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018             Page 9 of 13
[22]   We agree with the State that the same reasons that justify detentions of people

       in a house where a search warrant is being executed should likewise justify

       detentions of people in a house where an arrest warrant is being executed.

       Among other things, the Summers Court noted that there is an “obvious . . .

       legitimate law enforcement interest in preventing flight in the event that

       incriminating evidence is found.” Id. at 702. Moreover, “[t]he risk of harm to

       both the police and the occupants is minimized if the officers routinely exercise

       unquestioned command of the situation.” Id. As the State aptly notes, “[t]he

       touchstone of the Fourth Amendment is reasonableness, and, just as it is

       reasonable for officers to detain those people present in a home where a search

       warrant is [being] executed, it is likewise reasonable to freeze the scene where

       an arrest warrant is being executed, especially when the subject of their search

       could be waiting in the wings to either flee or fight.” Appellee’s Br. p. 19.


[23]   As a general matter, therefore, it may be proper for law enforcement officers to

       “freeze the scene” by detaining occupants of a house while they search the

       house for the subject of the arrest warrant being executed, to prevent flight and

       to minimize the risk of harm to all involved. And in this particular case, the

       officers had reason to be concerned both that Edwards was hiding in the home

       and that flight was a possibility, given the furtive and panicky behavior of the

       occupants of the home after Deputy Waterman knocked on the front door.

       Under these circumstances, we find that the seizure of Means did not violate

       the Fourth Amendment even though he was not named in the arrest warrant.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 10 of 13
[24]   In sum, there was sufficient reliable information supporting the arrest warrant,

       and the fact that Means was not named therein does not mean that his seizure

       was unconstitutional. We find that the execution of the arrest warrant did not

       violate Means’s Fourth Amendment rights and that the trial court did not err by

       admitting the evidence at issue.


                                     II. Article I, Section 11
[25]   Means also challenges the execution of the arrest warrant under Article I,

       Section 11 of the Indiana Constitution. Although this provision directly tracks

       the Fourth Amendment of the United States Constitution, the analysis under

       Article 1, Section 11 “turns on an evaluation of the reasonableness of the

       officers’ conduct under the totality of the circumstances.” Tate v. State, 835

       N.E.2d 499, 507 (Ind. Ct. App. 2005). The reasonableness of an officer’s

       conduct depends on a “balance of: 1) the degree of concern, suspicion or

       knowledge that a violation has occurred, 2) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities, and 3) the

       extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.

       2005).


[26]   The parties again disagree on whether Means has standing to raise a claim

       under the Indiana Constitution. We again assume for argument’s sake that he

       does.


[27]   First, we find that there was a substantial degree of concern, suspicion or

       knowledge that a violation had occurred. An arrest warrant for Edwards had

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 11 of 13
       been issued. The warrant and the packet of information provided by the

       intelligence unit showed 539 North Gray Street as Edwards’s address, and it

       was reasonable to believe based on the packet that the address information was

       less than two weeks old. This information came from an intelligence unit of a

       law enforcement agency, and there is no authority requiring that more than this

       is required to walk up to a house and knock on the door to serve the arrest

       warrant. Furthermore, after knocking on the front door, the officers heard

       multiple people in the house running around, barricading a side door, and

       expressing dismay that the police were there. It was approximately ten minutes

       after the officers first knocked that someone finally opened the door, and when

       they looked inside, they did not see Edwards. These facts and circumstances

       supplied the officers with a high degree of suspicion that Edwards was hiding

       elsewhere in the house.


[28]   Second, we find that the degree of intrusion was moderate. Means was

       handcuffed and prohibited from leaving the premises while the officers searched

       the house for Edwards. The search was relatively brief, however, and had no

       contraband been discovered, Means would have been allowed to leave in a

       timely fashion. Tr. Vol. II p. 58 (testimony of narcotics Detective Mauer that

       he received the call regarding the drugs found during the search from Deputy

       Waterman around 9:45 p.m.), 158 (testimony of Deputy Waterman that the

       team arrived at the residence at 8:59 p.m.).


[29]   Finally, the extent of law enforcement needs was high. They were executing an

       arrest warrant, which is an order to find a person, secure them, and bring them

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 12 of 13
       before the court. The officers at the scene observed furtive and panicky

       behavior from the occupants of the house, leading to a suspicion that Edwards

       was hiding somewhere inside. To ensure that they could conduct a safe search

       and prevent flight, the officers had a significant need to detain the occupants of

       the house.


[30]   We find that under the totality of these circumstances, the decision to detain the

       occupants of the house for a brief time while the officers conducted a protective

       sweep to look for Edwards was reasonable. Means’s rights under Article 1,

       Section 11 of the Indiana Constitution were not violated and the trial court did

       not err by admitting the evidence at issue.


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


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2701 | July 12, 2018   Page 13 of 13
