                                                                      FILED
                                                                 Sep 08 2017, 5:33 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Joel M. Schumm                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Eric P. Babbs
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

K.C. & K.C.,                                               September 8, 2017
Appellants-Respondents,                                    Court of Appeals Case No.
                                                           49A04-1606-JV-1230
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Marilyn Moores,
Appellee-Petitioner.                                       Judge
                                                           The Honorable Gary Chavers,
                                                           Magistrate
                                                           Trial Court Cause Nos.
                                                           49D09-1509-JD-1759
                                                           49D09-1511-JD-2031



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017              Page 1 of 11
[1]   In this consolidated appeal, Ki.C. appeals the juvenile court’s true findings that

      he committed delinquent acts which, if committed by an adult, would

      constitute battery on a public safety official as a level 6 felony and forcibly

      resisting law enforcement as a class A misdemeanor. Ke.C. appeals the

      juvenile court’s true finding that he committed a delinquent act which, if

      committed by an adult, would constitute resisting law enforcement as a class A

      misdemeanor. Ki.C. and Ke.C. (collectively, the “Respondents”) raise three

      issues which we consolidate and restate as whether the juvenile court abused its

      discretion in admitting certain evidence due to violations of the Respondents’

      rights under Article 1, Section 11 of the Indiana Constitution. We affirm.


                                       Facts and Procedural History

[2]   On September 24, 2015, Indianapolis Public Schools Police Department

      (“IPSP”) Officers John Dunker and Christopher Caldwell were on duty at

      Arsenal Technical High School when Officer Dunker received a radio call

      about a possible stolen phone. He proceeded to Allen Hall, and faculty

      member Tony Henderson told him that a female student’s “Windows phone”

      had been stolen and that no one had left the classroom and no one had

      reentered.1 Transcript at 4. Officer Dunker proceeded to conduct pat-down

      searches of the students who were in the classroom by taking one student at a




      1
       We note that this statement was admitted for the limited purpose of showing why Officer Dunker took the
      actions he did when he arrived in the classroom.

      Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017                  Page 2 of 11
      time out into the hallway and patting down the students’ exterior clothing.

      Soon after, Officer Caldwell arrived to assist with the searches.


[3]   After patting down at least one student and not finding the phone, Officer

      Dunker re-entered the classroom and “was greeted by [Ki.C.] yelling, he is not

      f------ touching me. He is not touching me, he is not searching me.” Id. at 10-

      11. Officer Dunker patted down another student, then came to Ki.C. who

      remained seated and stated that he would not allow Officer Dunker to search

      him. Officer Dunker asked Ki.C. to stand, and he refused to do so. After

      Officer Dunker moved the desk, Ki.C. stood, took his jacket off, and began to

      walk away, Officer Dunker placed his hand on Ki.C.’s shoulder, and Ki.C.

      “threw his arm back in an aggressive manor [sic] . . . .” Id. Officer Dunker

      went to grab Ki.C., who then balled his fist and swung it at Officer Dunker

      several times. Officer Dunker then placed Ki.C. on a ledge in the back of the

      classroom, and Ki.C. punched Officer Dunker in the ribs with his fist and with

      a limestone-based trophy. At that point, Officer Dunker took Ki.C. to the

      ground.


[4]   Ke.C., who is Ki.C.’s twin brother, observed Ki.C. and Officer Dunker on the

      ground, and Officer Caldwell prevented Ke.C. from moving toward them.

      Ke.C. tried to evade Officer Caldwell, but he was taken to the ground by the

      officer. During this encounter, Officer Caldwell believed that Ke.C. was hitting

      him in the leg. Officer Caldwell attempted to place Ke.C. in handcuffs, but

      Ke.C. kept avoiding the handcuffs by moving his arms and trying to pull away.



      Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 3 of 11
      Eventually, both Ki.C. and Ke.C. were placed in handcuffs and escorted by the

      officers to the IPSP office on the Arsenal Tech campus.


[5]   On September 25, 2015, the State alleged Ki.C. to be a delinquent child for acts

      constituting the following crimes if committed by an adult: Count 1, battery

      against a public safety official as a level 6 felony; Count 2, battery by bodily

      waste as a level 6 felony; Count 3, battery against a public safety official as a

      level 6 felony; Counts 4 and 5, intimidation as level 6 felonies; and Count 6,

      resisting law enforcement as a class A misdemeanor. On November 13, 2015,

      the State alleged Ke.C. to be a delinquent child for committing two counts of

      resisting law enforcement which would be class A misdemeanors if committed

      by an adult.


[6]   On March 14, 2016, the juvenile court held a consolidated fact-finding hearing

      for Ki.C. and Ke.C. Early in the testimony of Officer Dunker, defense counsel

      asked preliminary questions and made an oral motion to suppress the evidence

      of the events that occurred after the attempted pat-down search. Defense

      counsel asked Officer Dunker about the myIPS Student Code of Conduct, and

      Officer Dunker testified that “these rules are not necessarily over us,” that the

      officers “operate by our own standard operating procedure,” and that “we are

      separate from the school rules.” Transcript at 6. After having him read certain

      provisions contained in the Code of Conduct regarding personal technology

      devices such as smartphones and student searches, defense counsel moved to

      suppress his testimony as follows:



      Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 4 of 11
              The Officer acting in the capacity of a member of the State in his
              role as a policeman overstepped his authority; in fact, violated
              both of my client’s [sic] Constitutional rights to be free from
              unlawful searches and seizures. . . . We would ask that
              everything that occurred after the officer had the idea that he was
              going to search everyone in the classroom be suppressed and that
              in fact may result in a dismissal of the charges against both of
              these boys.


      Id. at 8-9. The court denied the motion. Counsel again objected during Officer

      Caldwell’s testimony, citing his previous argument, which the court overruled.

      The court also admitted into evidence as Respondents’ Exhibit A the myIPS

      Student Code of Conduct, which includes provisions regarding personal

      technology devices such as smartphones and student searches.


[7]   The court found Ki.C. delinquent on Counts 1 and 6 for acts which would

      constitute battery on a public safety official as a level 6 felony and resisting law

      enforcement as a class A misdemeanor for his actions involving Officer Dunker

      and entered findings of not true on the other four counts. The court found

      Ke.C. delinquent on one count of resisting law enforcement, which would be a

      class A misdemeanor if committed by an adult, for conduct related to Officer

      Caldwell, and entered a not true finding on the other count. The court entered

      dispositional orders placing both juveniles on probation.


                                                    Discussion

[8]   The issue is whether the juvenile court abused its discretion in admitting certain

      evidence due to violations of the Respondents’ rights under Article 1, Section

      11 of the Indiana Constitution. The admission and exclusion of evidence is a
      Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 5 of 11
       matter within the sound discretion of the trial court, and we will review only for

       an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An

       abuse of discretion occurs “where the decision is clearly against the logic and

       effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.

       2001). “[T]he ultimate determination of the constitutionality of a search or

       seizure is a question of law that we consider de novo.” Carpenter v. State, 18

       N.E.3d 998, 1001 (Ind. 2014).


[9]    Before addressing the merits of the Respondents’ arguments, we note the State

       asserts that the Respondents have waived the issue for failure to make a

       sufficient contemporaneous objection at the fact-finding hearing. The

       Respondents state that the issue is properly preserved and that, if this court

       decides otherwise, it must address the issue as one of ineffective assistance of

       counsel.


[10]   “In order to preserve a claim of trial court error in the admission or exclusion of

       evidence, it is necessary at trial to state the objection together with the specific

       ground or grounds therefor at the time the evidence is first offered.” Mullins v.

       State, 646 N.E.2d 40, 44 (Ind. 1995) (citations omitted). “Failure to state the

       specific basis for objection waives the issue on appeal.” Id.; see also Lewis v.

       State, 755 N.E.2d 1116, 1122 (Ind. Ct. App. 2001) (“Failure to make a

       contemporaneous objection to the admission of evidence at trial results in

       waiver of the error upon appeal.”); G.J. v. State, 716 N.E.2d 475, 478 (Ind. Ct.

       App. 1999) (“Where a defendant fails to object to the introduction of evidence,

       makes only a general objection, or objects only on other grounds, the defendant

       Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 6 of 11
       waives the suppression claim.”) (quoting Moore v. State, 669 N.E.2d 733, 742

       (Ind. 1996), reh’g denied)).


[11]   During the testimony of Officer Dunker, defense counsel objected and moved

       to suppress his testimony, arguing that “[t]he Officer acting in the capacity of a

       member of the State in his role as a policeman overstepped his authority; in

       fact, violated both of my client’s [sic] Constitutional rights to be free from

       unlawful searches and seizures.” Transcript at 8. He made a similar objection

       during the testimony of Officer Caldwell. Although defense counsel did not

       specifically mention Article 1, Section 11 of the Indiana Constitution, the

       objection was based upon the Respondents’ right to be free from unlawful

       searches and seizures, which is language contained in that constitutional

       provision. Based on defense counsel’s objections, and recognizing that

       “whenever possible,” this Court “prefer[s] to resolve cases on the merits instead

       of on procedural grounds like waiver,” Hale v. State, 54 N.E.3d 355, 359 (Ind.

       2016) (quoting Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)), we conclude

       that the Respondents’ arguments on appeal are not waived.


[12]   Article 1, Section 11 of the Indiana Constitution provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.



       Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 7 of 11
[13]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       Section 11 of our Indiana Constitution separately and independently. Robinson

       v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11

       claim, the State must show the police conduct ‘was reasonable under the

       totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d

       1200, 1205-1206 (Ind. 2008), reh’g denied). In general, “[w]e consider three

       factors when evaluating reasonableness: ‘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.’” Id. (quoting Litchfield v. State, 824 N.E.2d

       356, 361 (Ind. 2005)).


[14]   The Respondents argue that the officers violated their rights under Article 1,

       Section 11 of the Indiana Constitution by performing a pat-down search of all

       students in the classroom, arguing there was no suspicion that they had been

       involved in the purported theft, the degree of intrusion was significant, and the

       extent of law enforcement needs was minimal. The Respondents acknowledge

       that, in C.P. v. State, 39 N.E.3d 1174 (Ind. Ct. App. 2015), trans. denied, another

       panel of this Court adopted the new-crime exception to the exclusionary rule,

       and they urge us “not to follow C.P. and instead hold the new-crime exception

       does not apply to challenges under Article 1, Section 11.” Appellant’s Brief at

       14. The State responds that the school-initiated search was reasonable under

       Article 1, Section 11, and that the officers acted reasonably when attempting to

       conduct the pat-down search of the Respondents. The State further argues that


       Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 8 of 11
       the Respondents committed acts constituting new offenses within the new-

       crime exception to the exclusionary rule as set forth in C.P.


[15]   Even assuming the search of the Respondents was not reasonable under the

       totality of the circumstances, the trial court properly admitted the challenged

       evidence under the new-crime exception to the exclusionary rule as discussed in

       C.P. In that case the State alleged C.P. was a delinquent child for committing

       what would be level 6 battery against a public-safety official if committed by an

       adult. 39 N.E.3d at 1177. On appeal, this Court found that C.P. was seized

       because a police officer had placed his hand on C.P.’s shoulder to escort him off

       church property and concluded the seizure was illegal under the Fourth

       Amendment and under Article 1, Section 11 of the Indiana Constitution. Id. at

       1178-1179. We observed that many federal and state courts have applied the

       new-crime exception to the exclusionary rule under the Fourth Amendment

       and noted Professor LaFave’s discussion of the new-crime exception in his

       treatise:


               On occasion, when the police conduct an illegal arrest or an
               illegal search, this will prompt the person arrested or subjected to
               the search to react by committing some criminal offense. He
               might attack the arresting or searching officer, flee from that
               officer, attempt to bribe him, threaten the officer with harm
               should he testify against him, attempt to destroy evidence, or
               make some criminal misrepresentation in an effort to bring the
               incident to a close.


       Id. at 1180 (quoting 6 Wayne R. LaFave, SEARCH & SEIZURE: A TREATISE ON

       THE FOURTH AMENDMENT                  § 11.4(j) (5th ed. 2012) (footnotes omitted)). The

       Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017     Page 9 of 11
       Court stated that it “appears to be a nearly universal rule in American

       jurisdictions that when a suspect responds to an unconstitutional search or

       seizure by a physical attack on the officer, evidence of this new crime is

       admissible [under the Fourth Amendment] notwithstanding the prior

       illegality.” Id. at 1180-1181 (quoting State v. Lusby, 146 Idaho 506, 198 P.3d

       735, 738 (Idaho Ct. App. 2008), rev. denied).


[16]   The C.P. Court then noted that the focus of the exclusionary rule under the

       Indiana Constitution is the reasonableness of police conduct, and that, although

       Indiana’s exclusionary rule is different from the Fourth Amendment’s

       exclusionary rule, Indiana courts recognize the good-faith exception to the

       Fourth Amendment’s exclusionary rule under the Indiana Constitution. Id at

       1182. The Court observed that, although in some cases the Indiana

       Constitution confers greater protections to individual rights than the Fourth

       Amendment affords, “the Indiana Constitution does not compel a different

       result here,” that “the rationale that the other federal and state courts have cited

       in applying the new-crime exception to the Fourth Amendment’s exclusionary

       rule is equally applicable to the Indiana Constitution,” and that, “if evidence

       that defendants committed new and distinct crimes in response to illegal

       searches or seizures by law enforcement were inadmissible, then defendants

       could attack or shoot arresting officers without risk of prosecution.” Id. at 1183.

       The Court further stated that, “[a]s the Seventh Circuit explained in [United

       States v.] Pryor, [32 F.3d 1192 (7th Cir. 1994),] ‘An exclusionary rule that does

       little to reduce the number of unlawful seizures, and much to increase the

       Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 10 of 11
       volume of crime, cannot be justified,’” id. (quoting Pryor, 32 F.3d at 1196), and

       that “[s]uch a rule cannot be justified under the Indiana Constitution either.”

       Id. at 1184. The Court held that the new-crime exception applies to Indiana’s

       exclusionary rule and, because the juvenile court properly admitted evidence

       that C.P. battered the officer after he was illegally seized, affirmed C.P.’s

       adjudication. Id.


[17]   In this case, we conclude that the Respondents’ actions, which included

       violence against officers, constituted new and distinct crimes and thus that the

       evidence of those crimes is admissible pursuant to the new-crimes exception

       notwithstanding any illegality of the pat-down search. The trial court did not

       abuse its discretion in admitting evidence of the Respondents’ new crimes.


                                                     Conclusion

[18]   For the foregoing reasons, we affirm the juvenile court’s true findings for the

       Respondents.


[19]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1606-JV-1230 | September 8, 2017   Page 11 of 11
