FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JEFFREY D. STANTON                              GREGORY F. ZOELLER
Logansport, Indiana                             Attorney General of Indiana

                                                ANDREW FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                          Apr 29 2014, 9:41 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

J.K.,                                           )
                                                )
        Appellant-Defendant,                    )
                                                )
               vs.                              )      No. 66A03-1306-JS-220
                                                )
STATE OF INDIANA,                               )
                                                )
        Appellee-Plaintiff.                     )


                      APPEAL FROM THE PULASKI CIRCUIT COURT
                          The Honorable Michael A. Shurn, Judge
                               Cause No. 66C01-1203-JS-1




                                      April 29, 2014



                               OPINION - FOR PUBLICATION



ROBB, Judge
                                      Case Summary and Issue

        J.K. appeals the juvenile court’s adjudication of J.K. as a delinquent based on acts

of illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal

consumption of alcohol. He raises one issue for our review: whether the trial court

admitted evidence against J.K. in violation of his rights under the Fourth Amendment to

the United States Constitution, where law enforcement officers entered J.K’s curtilage,

conducted a knock and talk lasting approximately one hour, and entered the residence

without a warrant. Concluding the officers’ entry onto J.K.’s curtilage, their lengthy knock

and talk, and eventual residential entry were unreasonable searches under the Fourth

Amendment, we reverse.

                                   Facts and Procedural History1

        In the early hours of December 22, 2011, the Pulaski County Sheriff’s Department

received a complaint regarding a disturbance in the vicinity of Decker Drive in Winamac,

Indiana. The complainant informed law enforcement that a number of juveniles were

pushing a shopping cart through the neighborhood, making noise, and causing dogs to bark.

Winamac Police Department Officers Brian Gaillard and Mark Hoffman were dispatched

and arrived at J.K’s residence at approximately 1:11 a.m. Shortly after, Pulaski County

Sheriff’s Department Reserve Deputy John Haley arrived on scene. The officers observed

several vehicles parked outside the residence, one of which was a pickup truck with a

shopping cart in the bed of the truck. The officers suspected the cart had been stolen from


        1
           We heard oral argument in this case on March 7, 2014 at DePauw University. We commend
counsel for their advocacy and thank the faculty, staff, and students at DePauw for their participation and
hospitality.

                                                    2
an Alco store, which was approximately a mile away. A check on the truck’s license plate

revealed that the truck belonged to a person who Officer Hoffman knew lived elsewhere.

       Officer Hoffman knocked on the front door. In the meantime, Officer Gaillard and

Officer Haley went through the yard around either side of the residence to ensure that no

one attempted to flee from a back exit. No one answered the door, but Officer Hoffman

observed persons moving around inside and peeking through the blinds. When Officer

Haley entered the back yard and approached the back door, he was able to see through a

window and observed over a dozen empty beer cans and wine cooler bottles on the kitchen

counter. Officer Haley went to the front to inform Officer Hoffman of the empty alcohol

containers, and when he returned to the back of the house minutes later, he discovered that

someone inside the residence had removed the cans and bottles from view.

       After ten or fifteen minutes without a response from the occupants, Officer Gaillard

called for a tow truck to impound the pickup truck that contained the shopping cart. For

an additional forty minutes after calling for the tow, the officers remained on the front

porch and in the back yard. Officer Hoffman continued to knock at the front door and yell

inside, instructing the occupants to answer the door and telling them the truck would be

towed. Officer Gaillard spoke on the phone with a deputy prosecuting attorney, who told

him not to impound the pickup truck. The tow truck arrived at 2:04 a.m., before Officer

Gaillard had an opportunity to cancel the tow.

       Upon arrival of the tow truck, seventeen-year-old T.T., who owned the pickup truck,

opened the front door of the residence and stepped outside. T.T. exhibited signs of

intoxication, including slurred speech and an odor of alcohol. The officers told T.T. to

                                            3
retrieve the owner of the residence, and J.K., also seventeen years old, came to the door.

J.K.’s eyes were bloodshot. When J.K. came to the door, he was on the phone with his

mother, who owned the residence. J.K.’s mother was over an hour away but was on her

way home. Officer Gaillard spoke with J.K.’s mother, and the officers then entered the

residence without a warrant and before J.K.’s mother arrived at the home.

       The officers performed a search of the residence and found additional evidence of

underage drinking, including a number of alcoholic beverage containers. Additional

persons found in the residence were all under the age of eighteen, and several of them had

alcohol on their breath.

       On March 6, 2012, the State filed a delinquency petition, alleging J.K. committed

illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal

consumption of alcohol, all Class C misdemeanors.

       J.K. filed a motion to suppress, and a hearing was held on that motion on November

26, 2012. On December 24, 2012, the trial court issued an order denying J.K.’s motion to

suppress. Specifically, the trial court concluded the officers’ entry into the residence was

justified under the “protective sweep exception” to the Fourth Amendment’s warrant

requirement. Appellant’s Appendix at 18. Furthermore, the trial court noted that there was

conflicting testimony given as to whether J.K.’s mother gave consent to enter the residence,

but the trial court did “not need to reach any conclusion in relation to consent.” Id.

       A fact finding hearing was held on March 6, 2013, and J.K. was found to be a

delinquent child. J.K. filed a motion to correct error, which the trial court denied. On May

20, 2013, the trial court entered its dispositional order. This appeal followed.

                                             4
                                  Discussion and Decision

       J.K. argues that evidence was admitted at his fact finding hearing in violation of his

rights under the Fourth Amendment to the United States Constitution. Three warrantless

entries merit discussion in this case: (1) entry onto J.K.’s curtilage by Officer Gaillard and

Officer Haley; (2) the nearly hour-long span during which the officers remained on J.K.’s

front porch and yard, knocking and yelling into the house; and (3) the officers’ entry into

J.K.’s residence. We will address each of these warrantless entries below.

                    I. Standard of Review and the Fourth Amendment

       Because J.K. brings this appeal following his fact finding hearing, rather than as an

interlocutory appeal of the denial of his motion to suppress, we review this appeal as a

challenge to the trial court’s admission of evidence at the fact finding hearing. Clark v.

State, 994 N.E.2d 252, 259-60 (Ind. 2013). A trial court’s decision to admit or exclude

evidence is reviewed for an abuse of discretion. Young v. State, 980 N.E.2d 412, 417 (Ind.

Ct. App. 2012). A trial court abuses its discretion when its decision is clearly against the

logic and effect of the facts and circumstances or when the trial court has misinterpreted

the law. Id. The constitutionality of a search is a question of law, which we review de

novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Similarly, determinations of

reasonable suspicion and probable cause are reviewed de novo. Myers v. State, 839 N.E.2d

1146, 1150 (Ind. 2005). When a defendant challenges a warrantless search, it is the State’s

burden to prove the search fell within an exception to the warrant requirement. Clark, 994

N.E.2d at 260.

       The Fourth Amendment to the United States Constitution guarantees:

                                              5
        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.

It is a basic principle of Fourth Amendment law that “searches and seizures inside a home

without a warrant are presumptively unreasonable.” Kentucky v. King, 131 S.Ct. 1849,

1856 (2011) (citation omitted). In addition, the Supreme Court has held that the curtilage—

the area “immediately surrounding and associated with the home”—is “part of the home

itself for Fourth Amendment purposes.” Florida v. Jardines, 133 S.Ct. 1409, 1414 (2013)

(quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). Thus, warrantless entry onto

one’s curtilage is also presumptively unreasonable. However, the Court has said that this

presumption may be overcome because the “ultimate touchstone of the Fourth Amendment

is reasonableness. Accordingly, the warrant requirement is subject to certain reasonable

exceptions.” King, 131 S.Ct. at 1856 (citations and quotation marks omitted). Among

these recognized exceptions is the existence of exigent circumstances. Id. In this appeal,

it is the State’s position that the officers’ warrantless entries onto J.K.’s curtilage and into

his home were justified by exigent circumstances.2




        2
           In denying J.K.’s motion to suppress, the trial court stated the officers’ entry into the residence
was justified as a protective sweep. However, context indicates that the trial court likely meant exigent
circumstances, and the protective sweep doctrine would not justify the officers’ warrantless entry in this
case. Compare Maryland v. Buie, 494 U.S. 325 (1990) (discussing protective sweep doctrine) with
Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (discussing exigent circumstances exception to warrant
requirement). On appeal, the State does not argue the protective sweep doctrine applies.

                                                      6
                                    II. Curtilage Entry

       First, J.K. argues Officer Haley and Officer Gaillard’s entry onto J.K’s curtilage,

particularly his back yard, violated the Fourth Amendment. The State maintains the

officers’ entry onto J.K.’s curtilage was reasonable and justified by exigent circumstances.

       As an initial matter, law enforcement officers are not strictly prohibited from

entering a person’s curtilage. It is generally accepted that law enforcement officers enjoy

a limited invitation to approach a home through ordinary routes of ingress and egress open

to visitors. See Jardines, 133 S.Ct. at 1415-16. Officers who are not armed with a warrant

may knock on a door and request to speak with an occupant. Id. “This implicit license

typically permits the visitor to approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger longer) leave.” Id. at 1415.

During such an occurrence, “the occupant has no obligation to open the door or to speak.”

King, 131 S.Ct. at 1862.

       Conduct that occurs on one’s curtilage that is beyond a traditional “knock and talk”

is subject to Fourth Amendment protection. The Supreme Court has provided that

determining the extent of a home’s curtilage should be done with reference to four factors:

(1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is

included within an enclosure surrounding the home, (3) the nature of the uses to which the

area is put, and (4) the steps taken by the resident to protect the area from observation by

people passing by. United States v. Dunn, 480 U.S. 294, 301 (1987). With those factors

in mind, we must determine whether “the area in question is so intimately tied to the home



                                             7
itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment

protection.” Id.

       Those portions of J.K.’s property on which Officer Haley and Officer Gaillard

intruded, including the sides of the house and the back yard, are curtilage under the

protection of the Fourth Amendment. This area was immediately adjacent to J.K.’s home,

and Officer Haley was only a few feet away from the house and back door. Testimony

indicated that the front door was the common means of access to the house, and the back

door was “never” used to enter the house. Transcript at 321. There was no evidence of a

sidewalk or other means of ingress or egress that would indicate the sides and back of the

house were open to visitors. Moreover, the owners of the residence had taken steps to

secure privacy in this area: the back yard was enclosed by a privacy fence and a row of

pine trees. When Officer Haley and Officer Gaillard left the front door and walked around

to the back of the house, they were “no longer in a place where visitors could be expected

to go.” See Divello v. State, 782 N.E.2d 433, 439 (Ind. Ct. App. 2003), trans. denied.

       The State’s reliance on Traylor v. State, 817 N.E.2d 611 (Ind. Ct. App. 2004), trans.

denied, is misplaced.3 In Traylor, this court held that officers who approached the front

and rear doors of a mobile home during an investigation were in places where visitors of

the mobile home would be expected to go. Id. at 616. Whether a portion of the curtilage

is open to visitors is a fact-specific inquiry. See Dunn, 480 U.S. at 300-03. Contrary to

the State’s apparent interpretation, Traylor does not stand for the proposition that the back


       3
          The State also cites VanWinkle v. State, 764 N.E.2d 258 (Ind. Ct. App. 2002), trans. denied,
which the court in Traylor described as having “identical” facts. Traylor, 817 N.E.2d at 616.

                                                  8
yard and rear entry to every home in Indiana are open to any stranger who happens upon

them.

        The State argues that the entry onto J.K.’s curtilage, if otherwise impermissible, was

justified by exigent circumstances. Specifically, the State maintains the officers’ entry onto

J.K.’s curtilage was necessary to guard against fleeing suspects. Indeed, “[p]olice officers

may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.”

King, 131 S.Ct. at 1856 (citing United States v. Santana, 427 U.S. 38, 42-43 (1976)). Hot

pursuit of a fleeing suspect has been recognized as a circumstance 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.” Brigham City, Utah v.

Stuart, 547 U.S. 398, 403 (2006) (citation and quotation marks omitted). Contending that

such an exigency existed, the State cites two cases: Snellgrove v. State, 569 N.E.2d 337

(Ind. 1991) and Hardister v. State, 849 N.E.2d 563 (Ind. 2006). Neither case truly supports

the State’s argument, and no exigency existed such that it was necessary for the officers to

enter J.K.’s curtilage.

        In Hardister, officers received an anonymous tip that two persons armed with guns

were “cooking drugs” at their residence. 849 N.E.2d at 568. The officers went to the front

porch and knocked on the door. Id. Two men appeared at a window near the door and

made eye-contact with the officer who knocked. Id. The officer flashed his badge,

identified himself as a police officer, and asked the suspects to open the door. Id. Then,

the officers heard running and saw the two men fleeing to the rear of the residence. Id.

Believing the men were attempting to escape, the officers followed a sidewalk around the

                                              9
side of the house to the back door. Id. The court in Hardister held the officers’ warrantless

entry onto the curtilage was justified by their reasonable belief that they were in pursuit of

suspects attempting to flee from the back of the residence. Id. at 572.

        The facts in Hardister and this case are worlds apart.4 Here, the officers did not

witness anyone running toward the back of the residence. In fact, Officer Haley and Officer

Gaillard did not even know whether there were persons inside the residence before they

entered the back yard. There was no objective evidence indicating that anyone was fleeing

from the back of the residence.

        Additionally, the Supreme Court has said that “some element of a chase will usually

be involved in a ‘hot pursuit’ case.” Santana, 427 U.S. at 42 n.3. Officer Haley and Officer

Gaillard’s encroachment onto J.K.’s curtilage—to guard against the possibility that

someone may attempt to flee, without any evidence to support this belief—did not involve

an element of a chase.

        In sum, the officers’ warrantless entry onto J.K.’s curtilage was not justified by

exigent circumstances.          Therefore, we conclude that entry violated J.K.’s Fourth

Amendment right to be free from unreasonable searches. Thus, evidence obtained as a

result of that violation—namely, the sight of empty alcoholic beverage containers—and

any suspicion resulting from that evidence is tainted and subject to the exclusionary rule.

Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).



        4
          Snellgrove is also no help to the State. There, the court held that a warrantless entry into the
defendant’s home was not justified by exigent circumstances. Snellgrove, 569 N.E.2d at 341. Specifically,
the court found there was “no evidence in the record . . . that supports the State’s assertion that appellant
was likely to take flight to escape arrest.” Id. In that sense, Snellgrove is similar to the present case.

                                                    10
      III. Knock and Talk and Unlicensed Physical Intrusion on Protected Curtilage

       Next, J.K. contends the officers in this case violated J.K.’s Fourth Amendment

rights by engaging in an unconstitutional knock and talk. J.K. maintains that the officers’

presence at the home and continually knocking for approximately one hour without an

answer from an occupant exceeded their implied invitation to knock and talk. See Jardines,

133 S.Ct. at 1415-16. Essentially, we consider whether conduct that may begin as a valid

knock and talk may devolve into an unlicensed physical intrusion on a protected area,

resulting in an unconstitutional search. See id. at 1415-18; see also United States v. Jones,

132 S.Ct. 945, 949-53 (2012) (holding a physical intrusion—or “trespass”—on protected

property may constitute an unconstitutional search).

       This is an interesting issue, but it is one on which there is little binding authority.

The Supreme Court in Jardines described the implied invitation to knock and talk as the

license to do “no more than any private citizen might do.” Jardines, 133 S.Ct. at 1416

(citation omitted). As noted above, this limited invitation “permits the visitor to approach

the home by the front path, knock promptly, wait briefly to be received, and then (absent

invitation to linger longer) leave.” Id. at 1415 (emphasis added). This statement implies

that a failure to leave after a brief period exceeds the implied invitation to enter one’s

curtilage and would violate the Fourth Amendment. Indeed, Jardines held that law

enforcement’s use of trained drug dogs on the defendant’s front porch violated the Fourth

Amendment; that holding is based on the idea that such conduct was not encompassed by

the implied invitation to approach portions of the curtilage. Id. at 1416-17.



                                             11
       Discussing the law enforcement’s unconstitutional search in Jardines, the Supreme

Court explained how a conventional knock and talk may be distinguished from an

unconstitutional search and that the nature of the police conduct is central in determining

whether that conduct conforms to social norms:

       An invitation to engage in canine forensic investigation assuredly does not
       inhere in the very act of hanging a knocker. To find a visitor knocking on the
       door is routine (even if sometimes unwelcome); to spot that same visitor
       exploring the front path with a metal detector, or marching his bloodhound
       into the garden before saying hello and asking permission, would inspire
       most of us to—well, call the police. The scope of a license—express or
       implied—is limited not only to a particular area but also to a specific purpose.

Id. at 1416 (footnote omitted).

       Further, it is well-established that “the occupant has no obligation to open the door

or to speak.” King, 131 S.Ct. at 1862. “When the police knock on a door but the occupants

choose not to respond or to speak, the investigation will have reached a conspicuously low

point . . . .” Id. (citation and quotation marks omitted). Additionally, the Indiana Supreme

Court has stated that “[i]f residents exercise this right, officers generally must leave and

secure a warrant if they want to pursue the matter.” Hardister, 849 N.E.2d at 570.

       With these principles in mind, we must conclude that the officers’ conduct was an

unconstitutional search in violation of the Fourth Amendment. The officers’ actions in this

case extended well beyond the implied invitation to approach a citizen’s front door. The

officers surrounded J.K.’s residence around one o’clock in the morning and repeatedly

knocked on the door for over forty-five minutes. During that span of time, the officers

peered through the windows and continuously yelled into the house demanding that an

occupant answer the door. The Supreme Court has said officers may “approach a home

                                             12
and knock, precisely because that is ‘no more than any private citizen might do.’” Jardines,

133 S.Ct. at 1416 (quoting King, 131 S.Ct. at 1862). There is no doubt that the officers’

conduct in this case went far beyond anything that would ordinarily be expected to occur

on one’s doorstep. If three men with guns and flashlights were to surround the average

person’s home in the wee hours of the morning, knock for over forty-five minutes, and yell

inside demanding the occupants open the door, this situation would—like the Court noted

in Jardines—inspire that homeowner to call the police.

        Setting aside the officers’ conduct while on the curtilage, the length of time the

officers remained there would alone constitute a violation of the Fourth Amendment. The

officers knocked but did not receive an answer, ostensibly because the occupants chose not

to answer. At this time, the officers’ investigation reached a “conspicuously low point.”

King, 131 S.Ct. at 1862. But rather than vacate J.K.’s curtilage and attempt to obtain a

warrant,5 the officers simply remained on the curtilage for an additional forty-five minutes.

This is not permitted under the Fourth Amendment.

        [W]hen it comes to the Fourth Amendment, the home is first among equals.
        At the Amendment’s very core stands the right of a man to retreat into his
        own home and there be free from unreasonable governmental intrusion. This
        right would be of little practical value if the State’s agents could stand in a
        home’s porch or side garden and trawl for evidence with impunity . . . .




        5
           The trial court found “the officers on the scene had access to the deputy prosecuting attorney at
all times and never requested a search warrant to enter the residence.” Appellant’s App. at 18.


                                                    13
Jardines, 133 S.Ct. at 1414 (citation and quotation marks omitted). When a Hoosier

exercises his constitutional right to remain inside his home, law enforcement may not pitch

a tent on the front porch and wait in hopes of obtaining evidence.

       Finally, the circumstances of this case present no exception to the warrant

requirement (e.g. exigent circumstances) that would otherwise justify the officers’ decision

to remain on J.K.’s curtilage. For the duration of the time the officers stayed at J.K.’s

residence, they had no reason to believe that anyone inside the home was injured or in

danger.

       At oral argument, the State claimed the officers’ continued presence on J.K.’s

curtilage was reasonable because they believed the shopping cart in T.T.’s truck was

stolen.6 That argument is misguided. There is no general emergency exception to the

warrant requirement, nor does the mere existence of a crime constitute an exception.

Hardister, 849 N.E.2d at 571 (citing Mincey v. Arizona, 437 U.S. 385, 393-94 (1978)

(holding the seriousness of a crime being investigated or the interests in making law

enforcement more efficient do not justify dispensing with the warrant requirement or

disregarding the Fourth Amendment)); see also Welsh v. Wisconsin, 466 U.S. 740, 753

(1984) (stating “no exigency is created simply because there is probable cause to believe

that a serious crime has been committed”). We wish to make this point loud and clear:

suspicion of criminal activity is not an exception to the warrant requirement.



       6
           Alternatively, one might assume the police remained on J.K.’s curtilage based on suspicion
arising from the sight of empty alcohol containers and their removal from view. However, such suspicion
could not justify remaining on the curtilage because the information was obtained by way of an
unconstitutional search.

                                                  14
        Moreover, even if the shopping cart were relevant, we do not believe the officers

had probable cause to believe the shopping cart was stolen. The officers’ only reason for

suspicion was the sight of a shopping cart labeled “Alco” in the bed of T.T.’s truck. But

there is nothing inherently illegal about owning a shopping cart—as opposed to a patently

illegal substance such as cocaine—nor was there anything about this particular shopping

cart that signaled its possession was obviously illegal.7 Without some additional evidence

that the cart was stolen or that a local grocery store had recently reported a cart stolen, the

officers’ mere suspicion that a theft had occurred did not rise to the level of probable cause.

        Here, the officers acted without any identifiable exception to the warrant

requirement. We hold the officers’ lengthy trespass and their conduct on J.K.’s property—

including repeated knocking and yelling into the home—amounted to an unconstitutional

search and violated J.K.’s Fourth Amendment right to be free from unreasonable searches

and seizures. The evidence obtained against J.K. subsequent to this violation is fruit of the

poisonous tree and subject to the exclusionary rule. Wong Sun, 371 U.S. at 484-85.

Because all evidence of J.K.’s guilt was obtained consequent to the Fourth Amendment

violations, J.K.’s delinquency adjudications must be reversed.

        The dissent suggests the officers’ prolonged and uninvited entry onto J.K.’s

curtilage was reasonable because the officers were waiting for a tow truck. We cannot


        7
            Although shopping carts are not commonly owned by members of the general public, they may
be obtained legally with relative ease.                 See, e.g., Used Shopping Carts, EBAY.COM,
http://www.ebay.com/bhp/used-shopping-carts (last visited Apr. 21, 2014). Acknowledging ownership of
a shopping cart is not illegal and despite a lack of evidence the cart in this case was stolen, the dissent states
it is “willing to take notice that a substantial number of carts not on store parking lots were likely filched
by their owners.” This is the sort of speculation that courts have long held cannot be the sole basis for
probable cause.

                                                       15
agree. Setting aside the absence of probable cause, the decision to impound T.T.’s vehicle

in this case was unreasonable under the Fourth Amendment and cannot justify the officers’

trespass.   In Fair v. State, 627 N.E.2d 427, 431-35 (Ind. 1993), our supreme court

thoroughly discussed police authority to impound a vehicle and the means by which we

determine the propriety of a decision to impound under the Fourth Amendment. Law

enforcement’s ability to impound a vehicle is justified as a “community caretaking

function” used to facilitate public safety. Id. at 431-33. The court recognized “the risk . .

. that a decision to tow will be motivated solely by the desire to conduct an investigatory

search” and that this was “problematic given that the community caretaking function is

‘totally divorced from the detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute.’” Id. at 433 (quoting Cady v. Dombrowski, 413 U.S.

433, 441 (1973)) (emphasis added). Accordingly, the approach for evaluating a police

officer’s decision to tow a vehicle must “accommodate the multiformity of hazards with

which they must deal and succeed in ferreting out those impoundments which are a mere

pretext for other, improper objectives.” Id. With these principles in mind, the court held

that to prove an impoundment was valid and warranted under the community caretaking

exception, the State must demonstrate: “(1) that the belief that the vehicle posed some

threat or harm to the community or was itself imperiled was consistent with objective

standards of sound policing, and (2) that the decision to combat that threat by impoundment

was in keeping with established departmental routine or regulation.”           Id. (citations

omitted).



                                             16
        In this case, the State made no argument that the decision to tow was proper either

before the trial court, in its appellate brief, or at oral argument. Regardless, the State could

not possibly demonstrate that T.T.’s truck posed a threat to the community or that its

removal was necessary to facilitate public safety. In Fair, the court noted the community

caretaking function has been implicated in circumstances where “the arrest of the driver

left his car unattended on a public highway; where the ownership of the vehicle cannot be

established; and where the vehicle was on private property and the owner of the property

requested removal.” Id. (citations omitted). None of those circumstances were present in

this case, and the record does not provide any other indication that public safety required

the truck to be towed. In fact, T.T.’s truck was merely parked in front of J.K.’s home,

where T.T. was staying as an overnight guest.8

        Far from an attempt to ensure public safety, the tow in this case was called strictly

for what the court in Fair deemed an improper objective—namely, the desire to conduct an

investigatory search and acquire evidence relating to the violation of a criminal statute.

Both the probable cause affidavit and testimony by Officer Gaillard make this fact

abundantly clear. See Child’s Exhibit A (“I advised Officer Hoffman that I believed the

cart was stolen. I advised that I would impound the vehicle with the property inside and

speak to the owner at a later date. . . . I asked dispatch the the [sic] next available tow due

to the stolen property . . . . I then called Deputy Prosecutor Blair Todd and advised him . . .

that I believed the cart was stolen and I requested a tow. Deputy Prosecutor Todd advised


        8
          When asked where the truck was parked, Officer Gaillard testified that it was directly in front of
J.K.’s house and stated “I wouldn’t consider it on the road.” Transcript at 34.

                                                    17
against towing the vehicle.”); Tr. at 14 (“We decide that the cart in the truck is most likely

stolen. . . . So I told [Officer Haley], I said, let’s just tow the truck and we’ll leave.”). In

Fair, we were called to “ferret[] out those impoundments which are a mere pretext for other,

improper objectives.” 627 N.E.2d at 433. But to call the decision to tow T.T.’s truck a

“mere pretext” would imply that the officers’ motives in this case are unclear or that public

safety was a plausible explanation. This is not such a case. The officers’ stated purpose in

calling for the tow was to gather evidence of stolen property, and the record is utterly

devoid of any indication that public safety was ever an issue. Even the local prosecutor

directed the officers to cancel the tow.              “An action is reasonable under the Fourth

Amendment, regardless of the individual officer’s state of mind, as long as the

circumstances, viewed objectively, justify [the] action.” Brigham City, 547 U.S. at 404

(citation and quotation marks omitted) (emphasis in original). The officers’ decision to

remain on the scene for the purpose of carrying out an illegal impoundment of T.T.’s

vehicle is not an objectively reasonable justification under the Fourth Amendment. 9

            The dissent also implies that the officers’ unconstitutional conduct did not result in

the discovery of evidence. We cannot agree with this premise. Once Officer Hoffman

knocked and received no answer, the officers were obliged to “leave and secure a warrant




        9
            We also note that waiting for a tow truck would not require the officers to continue banging on
the door and yelling into the house for nearly forty minutes. In fact, it would not require them to remain on
J.K.’s property at all. This is true even if the officers’ improper, subjective motivations in calling for the
tow truck were relevant, which of course they are not. See Brigham City, 547 U.S. at 404. Furthermore,
assuming arguendo there was probable cause to suspect a theft, a more reasonable approach would have
been to simply lift the shopping cart from the open bed of the truck and then leave. No matter how you
slice it, the officers’ conduct in this case was unreasonable and unjustifiable.


                                                     18
if they want[ed] to pursue the matter.” Hardister, 849 N.E.2d at 570. They did not leave.

The officers’ opportunity to observe and detain J.K. in his own front doorway was a direct

result of the officers’ decision to remain on the property in violation of the Fourth

Amendment. Had the officers conformed to the Fourth Amendment’s requirement to

leave, we can conceive of no realistic situation in which J.K. could have been arrested.10

        As a final point, we observe the trial court found there was conflicting evidence as

to whether consent to search the home was given by J.K.’s mother, who was not present.

Although not an argument made before us, we believe it is worth considering whether any

potential consent in this case was “sufficiently an act of free will to purge the primary taint

of the unlawful invasion.” See Brown v. Illinois, 422 U.S. 590, 597 (1975) (quoting Wong

Sun, 371 U.S. at 486). We conclude it would not be. “[S]uppression is required of any

items seized during the search of the house, unless the taint of the initial entry had been

dissipated before the ‘consents’ to search were given. . . . This ordinarily involves showing

that there was some significant intervening time, space, or event.” United States v.

Vasquez, 638 F.2d 507, 527-28 (2d. Cir. 1980). Any supposed consent given in this case

was immediately following—or even during—the officers’ unconstitutional search, and

such consent would have been possible only because the officers chose to remain at J.K.’s



        10
           We also take issue with the dissent’s suggestion that J.K.’s eventual face-to-face with the officers
was somehow a voluntary encounter and a lawful arrest and that this event was unconnected with the
officers’ act of knocking and yelling into the house for nearly an hour. Considering the officers’ conduct
on the curtilage and the officers’ command for T.T. to retrieve the owner of the residence, we would
conclude J.K. was unconstitutionally seized. See United States v. Jerez, 108 F.3d 684, 689-93 (7th Cir.
1997) (holding defendant was impermissibly seized upon opening the door of his hotel room after officers
knocked for three minutes). However, an in-depth discussion of whether a seizure occurred here is
unnecessary, because our determination of an illegal search under Jardines is more than sufficient to warrant
reversal of J.K.’s juvenile adjudications.

                                                     19
front doorstep for an unduly lengthy amount of time, in violation of his Fourth Amendment

rights. Thus, there is no need to remand for a determination of the facts regarding consent,

because any consent given by J.K.’s mother would be tainted by the unconstitutional

invasion of J.K.’s curtilage.11

                         IV. Residential Entry and Exigent Circumstances

        Even assuming, arguendo, that the officers’ continued presence at J.K.’s home was

reasonable, the officers’ warrantless entry into the home was unreasonable under the Fourth

Amendment. The State asserts two justifications for the entry: (1) the officers entered the

home to ensure the safety of unsupervised juveniles who may have been drinking inside

the residence and (2) to prevent the imminent destruction of evidence.

        As to the State’s first rationale, the Supreme Court has recognized that “law

enforcement officers may enter a home without a warrant to render emergency assistance

to an injured occupant or to protect an occupant from imminent injury.” Brigham City,

547 U.S. at 403. The State’s assertion that the facts of this case fit within this exception is

unconvincing.

        Prior to the officers’ entry, they were aware of the following facts: (1) T.T. had an

odor of alcohol on his breath; (2) J.K. had bloodshot eyes; (3) both J.K. and T.T. were

underage; (4) J.K.’s mother was not present, but the officers did not have any knowledge




        11
           It is also possible, given the circumstances of this case, that any alleged consent given by J.K.’s
mother would not comply with Indiana Code section 31-32-5-1, which sets out requirements for a valid
waiver of a child’s constitutional rights.

                                                     20
as to whether another supervising adult was present; and (5) the officers believed there

were more people inside the residence.

        First, the officers’ belief that other persons in the residence had consumed alcohol

was pure speculation. The only persons the officers knew were drinking were J.K. and

T.T., neither of whom required emergency assistance. And neither J.K. nor T.T. gave any

indication that someone inside was injured or may be in need of emergency assistance. In

reality, there was no objective evidence that the underage drinking that occurred in this

case created an imminent threat of injury or death to someone inside the residence.12

        Second, the State fails to offer any argument—convincing or otherwise—that

underage drinking is a circumstance that as a general matter creates a threat of imminent

injury. The mere occurrence of underage drinking does not give law enforcement carte

blanche to enter the privacy of one’s home without a warrant. Unlike other situations

where we have found certain conduct involves inherent danger creating an exigency (e.g.

manufacturing methamphetamine in a populated area), there is nothing so inherently

dangerous about underage drinking that renders the imbiber subject to the threat of

imminent injury. Cf. State v. Crabb, 835 N.E.2d 1068 (Ind. Ct. App. 2005) (finding exigent

circumstances exist where officers have probable cause to suspect methamphetamine

manufacturing and there is evidence that someone inside the home is subject to the threat




        12
           When pressed at oral argument to recount any specific evidence the police were aware of that
established an exigency justifying warrantless entry into the residence, the State responded that T.T. had
been drinking and the juveniles were “being irresponsible.” There is no irresponsibility exception to the
warrant requirement.


                                                   21
of danger, because of the inherent risk of explosion), trans. denied; also Holder v. State,

847 N.E.2d 930, 937 (Ind. 2006) (same).

        “Courts should not be reticent in enforcing the constitutional rule restricting the

search of a person’s home without a warrant or consent, and therefore, demand a genuine

showing of an emergency before they will excuse the police’s failure to obtain a warrant.”

Hawkins v. State, 626 N.E.2d 436, 439 (Ind. 1993). “[T]he burden is on the government

to demonstrate exigent circumstances that overcome the presumption of unreasonableness

that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750

(1984). The State has failed to meet its burden.13

        The dissent states it believes the officers’ warrantless entry into J.K.’s home was

reasonable.      Without citation to authority, it offers two reasons in support of this

position: (1) it was likely that other people were inside the house; and (2) news stories

about the potential consequences of teenage drinking parties. These do not meet an

exception to the warrant requirement—separately or together. First, the possible presence

of someone else in the home means nothing, and nothing in the record suggests the officers

had evidence those persons were in danger or even that they were drinking or

underage. Second, reliance on the potential consequences of teenage drinking—without



        13
            The trial court concluded the entry was “reasonable . . . based on the concern for the safety and
security of [the] juveniles.” Appellant’s App. at 18 (citing Rush v. State, 881 N.E.2d 46 (Ind. Ct. App.
2008)). Rush involved an underage drinking party; however, the facts were much different. In Rush, the
officers responded to a report of an underage drinking party. When they arrived, they observed several
teenagers attempting to flee, and the officers entered the curtilage to detain those escaping juveniles. The
officers in Rush also entered the residence; however, the residential entry was made with consent. 881
N.E.2d at 52. The generic references to safety made by the court in Rush were irrelevant to the holding and
are merely dicta. That said, to the extent Rush can be read to imply that underage drinking is an exigent
circumstance in and of itself, we respectfully disagree.

                                                    22
any evidence they were actually present here—is equally unavailing, because the exigent

circumstances inquiry is fact-specific and those circumstances must be present in this

particular case to justify warrantless entry. Missouri v. McNeely, 133 S.Ct. 1552, 1559

(2013) (“To determine whether a law enforcement officer faced an emergency that justified

acting without a warrant, this Court looks to the totality of circumstances . . . [T]he fact-

specific nature of the reasonableness inquiry demands that we evaluate each case of alleged

exigency based on its own facts and circumstances.”) (citations and quotation marks

omitted). Simply stated, the likelihood of occupants in a home and a vague anecdotal

reference to a potential worst-case-scenario effect of underage drinking does not amount

to objective evidence producing a need to enter the home to prevent imminent injury or

death in this case.14

        Alternatively, the State argues the officers’ entry was permissible to prevent the

destruction of evidence. An exigency justifying warrantless entry exists when there is a

need to “prevent the imminent destruction of evidence.” Brigham City, 547 U.S. at 403.




        14
            The dissent also implies J.K.’s adjudications could be affirmed without evidence obtained from
the residential entry, stating the entry was reasonable “but it need not be so in order for us to resolve this
appeal.” In other words, the dissent believes J.K’s adjudications could be affirmed solely based on J.K.’s
detention on the front porch and the observation of J.K.’s bloodshot eyes. Where constitutional error occurs,
a conviction may not be affirmed unless the State can show “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 23-24
(1967). That burden would not be met here. Prior to the residential entry, no admissible evidence existed
proving J.K. was in possession of alcohol, and J.K.’s bloodshot eyes could not sustain his adjudication for
illegal possession. See Lawson v. State, 803 N.E.2d 237, 242-43 (Ind. Ct. App. 2004) (holding where only
evidence was odor of alcohol and an empty container, convictions for both illegal consumption and illegal
possession violated Indiana’s Double Jeopardy Clause), trans. denied. Further, all evidence that J.K. aided
illegal consumption (i.e. alcohol containers and juveniles in the home under the influence) was obtained by
way of the officers’ warrantless residential entry.

                                                     23
       However, this argument is based on Officer Haley’s observation of empty alcohol

containers that were later removed from view by someone inside the residence. That

observation was made during Officer Haley’s unconstitutional invasion of J.K.’s curtilage,

and thus, that fact cannot justify the officers’ warrantless entry. Wong Sun, 371 U.S. at

484-85.

       Any concern for dissipation of alcohol in the juveniles’ blood would also fail to

support a claim of exigent circumstances in this case. Whether such an exigency exists is

based on the totality of the circumstances, and the natural dissipation of alcohol in the

bloodstream is not a per se exigency. McNeely, 133 S.Ct. at 1556 (holding the dissipation

of alcohol is not a per se exigency allowing a warrantless blood draw in drunk driving

investigations). Here, the officers did not even know whether there were additional

juveniles in the house who had been drinking. Further, the need to obtain quick results for

an adult suspected of driving under the influence does not necessarily translate to a case

involving juveniles, where the presence of any alcohol in the bloodstream is illegal; thus,

law enforcement officers have additional time to secure incriminating evidence against an

underage drinker. See id. at 1559 (stating exigent circumstances exist only when there is

“no time to secure a warrant”). And lastly, all three of J.K.’s offenses in this case were

Class C misdemeanors. The relatively minor nature of the offenses weighs against finding

an exigency based on any potential destruction of evidence. See Welsh, 466 U.S. at 753

(holding “an important factor to be considered when determining whether any exigency

exists is the gravity of the underlying offense for which the arrest is being made”).



                                             24
       Finally, we note that the act of detaining or arresting J.K. and T.T. outside the home

would not provide a legal basis for a subsequent warrantless entry into the home. Put

simply, under these circumstances, doctrines such as “search incident to arrest” and

“protective sweep” would not justify warrantless entry into J.K.’s home. See Chimel v.

California, 395 U.S. 752 (1969) (holding warrantless search of defendant’s home was not

justified as a search incident to arrest); cf. also Maryland v. Buie, 494 U.S. 325 (1990)

(discussing protective sweep doctrine). This is true even if we were to assume the search

that occurred on J.K.’s property and resulting arrest were legal—a point against which we

are in steadfast opposition.

                                            Conclusion

       We conclude the officers’ warrantless entry on J.K.’s curtilage, including both the

sides of the house and back yard, violated the Fourth Amendment. Further, we hold the

officers’ presence at the home and continually knocking for approximately one hour

without an answer from an occupant exceeded their implied invitation to knock and talk

and constituted an unreasonable search in contravention of the Fourth Amendment.

Finally, we would also conclude the officers’ warrantless residential entry was

unconstitutional. All evidence against J.K. was obtained consequent to these constitutional

violations. Accordingly, his adjudications must be reversed.

       We reverse.

CRONE, J., concurs.

SHEPARD, S.J., dissents with separate opinion.



                                             25
                               IN THE
                     COURT OF APPEALS OF INDIANA

J.K.,                                                 )
                                                      )
        Appellant-Defendant,                          )
                                                      )
               vs.                                    )    No.       66A03-1306-JS-220
                                                      )
STATE OF INDIANA,                                     )
                                                      )
        Appellee-Plaintiff.                           )
                                                      )



SHEPARD, Senior Judge, dissenting.

        J.K.’s lawyer places two assertions before us. He says one officer unconstitutionally

entered his backyard, and he claims the officers stayed too long at his property and knocked on

his door too many times.

        My reaction to these two points is that the officer’s stay in the backyard produced no

evidence supporting the juvenile finding that is being appealed, and that the continued knocking

is not what led the juveniles inside ultimately to step outside, visibly impaired from drinking.

        My take on the events that gave rise to this proceeding, viewed favorably to the trial

court’s judgment as the standard for appellate review demands, is rather different than the way

the majority sees the facts.

        The Winamac Police Department dispatched officers just after 1 a.m. to investigate a

complaint that juveniles were pushing a shopping cart around the neighborhood, making enough

noise to provoke dogs to bark at an hour when most people are trying to sleep.

        The officers quickly observed a gathering of vehicles near 412 Decker Drive, including a

                                                26
pickup truck visibly containing the offending shopping cart. This cart was labeled with the name

of a store about a mile away. Transcript at 12-15. While the majority relies on the idea that there

is nothing inherently illegal with owning a shopping cart, I’d be willing to take notice that a

substantial number of carts not on store parking lots were likely filched from their owners.

       As the majority observes, the officer who initially knocked on the front door could hear

multiple people inside and see them peering through the blinds. The officer who went around to

the back yard could see beer cans and wine bottles on the kitchen counter.

       When no one answered the front door, the officers decided to tow the truck containing the

apparently stolen shopping cart. Most of the time the police remained on the scene consisted of

waiting for the tow truck to arrive, something like forty minutes.

       The Court’s decision to reverse the delinquency finding rests substantially on (1) the long

period that one officer occupied the back yard, (2) the many times the officer in front knocked on

the door, and (3) the length of the period officers remained on the scene waiting for the tow.

       I agree that there was little justification for a long occupation of the back yard. On the

other hand, very little of consequence occurred as a result. Even after seeing the beer and wine

through the kitchen window, the police did not take any particular action other than to remain in

place, and there is abundant evidence of J.K.’s offenses even if what had been seen in the kitchen

were held inadmissible.

       The same can be said for the repeated knocks at the front door. None of these produced a

response from the occupants, and the police stayed outside.

       What happened next was that the tow truck arrived and the owner of the pickup,

seventeen-year-old T.T., decided to come out and look after his interests. He opened the front

door and stepped outside, visibly intoxicated. Transcript 19-20. The officers asked T.T. to

summon the owner of the residence, and seventeen-year-old J.K. appeared, his eyes bloodshot.

                                                 27
Transcript 22.

       The trial judge concluded that the officers, having seen T.T. and J.K. in this state, were

warranted in entering the home to assure the safety of the other occupants. It seemed highly

likely there were other occupants in light of the large number of cars parked out front, and we

read almost daily about the sad consequences of teenage drinking parties.

        I am inclined to think Judge Shurn was right about the reasonableness of the officers

entering the home, but it need not be so in order for us to resolve this appeal.

       I conclude that the police were reasonable to wait for the tow truck, and reasonable to

effect arrests once T.T. and J.K. appeared at the door of the home, noticeably under the

influence.




                                                 28
