                                                                                        FILED
                                                                                    Jul 07 2016, 3:16 pm

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
 ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE             and Tax Court


 Valerie K. Boots                                     Gregory F. Zoeller
 Marion County Public Defender Agency                 Attorney General of Indiana
 Indianapolis, Indiana
                                                      Jodi Kathryn Stein
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana




                                             In the
                         Indiana Supreme Court
                                        No. 49S05-1602-CR-83

TIMMIE BRADLEY,
                                                                 Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                                 Appellee (Plaintiff below).


               Appeal from the Marion Superior Court, No. 49G20-1301-FA-3632
                         The Honorable Daniel L. Pflum, Senior Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1404-CR-181

                                            July 7, 2016

David, Justice.

       This case involves whether Bryant Beatty had apparent authority to consent to police entry
into Defendant, Timmie Bradley’s, home. Specifically, does a houseguest, who happens to answer
the door to a home shortly after he knocked to gain entry himself, have the apparent authority to
consent to police entry? Under the facts and circumstances of this case, we hold that he does not.
        Bradley also challenges the protective sweep of his home that occurred after police entered.
However, we need not address the merits of his argument regarding the protective sweep. Because
police did not have a warrant, or warrant exception, to justify entry into the home in the first place,
the subsequent warrantless police searches, including the protective sweep, were unlawful and
thus, the fruits of those searches must be suppressed. Accordingly, we reverse the trial court’s
denial of Bradley’s motion to suppress all evidence seized in the search of his home.



                                    Facts and Procedural History


        After receiving an anonymous complaint about drug dealing at an Indianapolis home,
Indianapolis police began conducting surveillance at that home. On one occasion, police observed
“a lot of foot traffic” with visitors to the home “going inside, staying for [a] very short amount of
time and leaving.” (Tr. 36-37.) Police believed that such activity was indicative of the sale of
drugs. Police observed a man later identified as Timmie Bradley enter the home. They further
observed a man later identified as Bryant Beatty enter the home. 1


        On January 15, 2013, police were again conducting surveillance on the home when they
saw Beatty arrive again. They watched as Beatty approached the home and knocked. Someone
let him inside a short time later. A few minutes later, police decided to conduct a “knock and
talk.” 2 They knocked on the door and Beatty, who had just arrived and knocked himself a few
minutes earlier, opened the door.


        Police did not know who lived in, leased or owned the home. Indeed, Detective Campbell
testified:

1
 The State presented no evidence as to the circumstances of Beatty’s entering the home on this occasion,
such as whether he knocked or used a key.
2
  “A knock and talk investigation involves officers knocking on the door of a house, identifying themselves
as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission
to search the house.” Hayes v. State, 794 N.E.2d 492, 496 (Ind. Ct. App. 2003) (internal quotations and
citations omitted).




                                                     2
                Q:     And when Defendant Beatty opened the door, you didn’t
                       know if he was a resident or an owner or had any authority
                       whatsoever to allow – to allow you to enter the residence?

                [Detective Campbell:] That’s correct.

(Tr. 75.) Nevertheless, police requested entry into the home. Beatty consented. Once inside the
home, police smelled burnt marijuana. Police asked Beatty if there was anyone else in the home.
One detective testified that Beatty said there was, while another detective testified that Beatty said
no. Police then saw a man peek out from a doorway at the back of the home. After this man saw
the police, he went back into the room he was in. Thinking the man could have a weapon, police
first asked, then ordered the man to come out and talk. After the man did not comply, police
decided to a do a “protective sweep” of the home “just for officer[ ] safety.” (Tr. 43, 154.)


         During the sweep, police entered the kitchen where they observed several items on the
counter including a set of digital scales and a “very small amount of cocaine.” (Tr. 181.) Police
also entered a closed bedroom and detained another man. Police searched the back bedroom,
including a closet and sock therein, and inside the kitchen drawers and cabinets. They found heroin
and other items. Police detained the men they found in the home on the couch. They also searched
the couch and found a small handgun under a cushion.


         While police were conducting their search, Bradley arrived home. He entered using a key.
When he entered, he had his left hand in his coat pocket. The police identified themselves and
ordered Bradley to remove his hand from his pocket. When he failed to comply, police “took him
down to the ground” and discovered a baggie of cocaine sticking out of his pocket. (Tr. 162-163.)
Police searched Bradley’s person, recovering a baggie that contained a large amount of cocaine, a
large amount of U.S. currency, and a small amount of cocaine in the coin pocket of Bradley’s
pants.




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        Bradley was arrested and charged with: Count I, class A felony dealing in cocaine 3; Count
II, class C felony possession of cocaine and a firearm 4; Count III, class C felony possession of
cocaine 5; Count IV, class A felony dealing in heroin 6; Count V, class C felony possession of heroin
and a firearm 7; Count VI, class C felony possession of marijuana 8; and Count VII, class A
misdemeanor possession of marijuana 9.


        Bradley filed a motion to suppress all the evidence seized as a result of the police search
of his home without a warrant. The trial court conducted a two-day combined suppression hearing
and bench trial. The trial court excluded items found in the kitchen and bedroom that were not
found in plain view, but ultimately, admitted the rest of the evidence.


        The court found Bradley guilty of Count I, class A felony dealing in cocaine; Count II,
class C felony possession of cocaine and a firearm; Count III, class C felony possession of cocaine;
and Count VII, class A misdemeanor possession of marijuana. He was found not guilty as to the
other counts.


        Bradley appealed, alleging that the police made a warrantless entry into his home without
valid consent and that they conducted an illegal “protective sweep” once inside. He also argued
that his convictions violated the prohibitions against double jeopardy and that the evidence to
support his convictions was insufficient. In a published opinion, the Court of Appeals affirmed
Bradley’s class A felony cocaine conviction, but vacated the other three convictions, on double
jeopardy and sufficiency grounds. Bradley v. State, 44 N.E.3d 7, 26 (Ind. Ct. App. 2015), vacated.
The court upheld the police entry into Bradley’s home and the protective search as being
constitutional under both the federal and Indiana constitutions. Id. at 18, 20. Bradley petitioned




3
  Ind. Code § 35-48-4-1(a)(2).
4
  Ind. Code § 35-48-4-6(b)(1).
5
  Ind. Code § 35-48-4-6(b)(1).
6
  Ind. Code § 35-48-4-1(a)(2).
7
  Ind. Code § 35-48-4-6(b)(1).
8
  Ind. Code § 35-48-4-6(b)(1).
9
  Ind. Code § 35-48-4-11.



                                                 4
to transfer, which we granted, thereby vacating the Court of Appeals’ opinion. Ind. App. Rule
58(A).


                                        Standard of Review

         The trial court has broad discretion to rule on the admissibility of evidence. Guilmette v.
State, 14 N.E.3d 38, 40-41 (Ind. 2014) (citations omitted). We review its rulings “for abuse of that
discretion and reverse only when admission is clearly against the logic and effect of the facts and
circumstances and the error affects a party's substantial rights.” Id. However, the “constitutionality
of a search or seizure is a question of law, and we review it de novo.” Kelly v. State, 997 N.E.2d
1045, 1050 (Ind. 2013) (citations omitted).


                                              Discussion

         Bradley first argues that police entry into his home was unlawful because Beatty did not
have apparent authority to give consent to that entry as the State failed to demonstrate that they
had a reasonable belief that Beatty had authority to consent. Bradley also argues that once police
were in his home, they conducted an unlawful protective sweep. We find the issue of whether
Beatty had apparent authority to consent to police entry into Bradley’s home dispositive.


         The Fourth Amendment protects persons from unreasonable search and seizure, and this
protection has been extended to the states through the Fourteenth Amendment. U.S. CONST.
amend. IV; Mapp v. Ohio, 367 U.S. 643, 650 (1961). Warrantless searches and seizures inside the
home are presumptively unreasonable “subject only to a few specifically established and well
delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (citations omitted).
“When a search is conducted without a warrant, the State has the burden of proving that an
exception to the warrant requirement existed at the time of the search.” Berry v. State, 704 N.E.2d
462, 465 (Ind. 1998) (citing Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998)).


         One well-recognized exception to the warrant requirement is a voluntary and knowing
consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Stallings v. State, 508
N.E.2d 550, 552 (Ind. 1987). “Authority to consent to a search can be either apparent or actual.”


                                                  5
Gado v. State, 882 N.E.2d 827, 832 (Ind. Ct. App. 2008), trans. denied. Actual authority requires
a sufficient relationship to or mutual use of the property by persons generally having joint access
to or control of the property for most purposes.      Halsema v. State, 823 N.E.2d 668, 677 (Ind.
2005). The test for evaluating apparent authority is whether “the facts available to the officer at
the time would cause a person of reasonable caution to believe that the consenting party had
authority over the premises.” Primus v. State, 813 N.E.2d 370, 374-75 (Ind. Ct. App. 2004) (citing
Krise v. State, 746 N.E.2d 957, 967 (Ind. 2001); Trowbridge v. State, 717 N.E.2d 138, 144 (Ind.
1999)). The State bears the burden of proving that the third-party possessed the authority to
consent. Primus, 813 N.E.2d at 375.

       Here, there is no dispute that Beatty did not have actual authority; instead, the issue is
whether Beatty had apparent authority to consent to police entry into Bradley’s home. The facts
available to police when determining whether Beatty had apparent authority reveal that:

       1)      Two detectives saw Beatty enter the home on one prior occasion. (The State
               presented no evidence as to the circumstances of Beatty’s entering the home on this
               prior occasion, such as whether he knocked or used a key.)
       2)      On the day of the incident in question, police observed Beatty knock to gain entry
               to the home.
       3)      After someone let Beatty into the home, police waited a few minutes and then
               knocked on the door. Beatty answered the door. Police did not ask Beatty who he
               was or if he lived in the home so as to ascertain if he had authority to grant consent
               to enter.
       4)      Police did not know who lived in, leased or owned the home. Indeed, Detective
               Campbell testified:

               Q:      And when Defendant Beatty opened the door, you didn’t
                       know if he was a resident or an owner or had any authority
                       whatsoever to allow – to allow you to enter the residence?

               [Detective Campbell:] That’s correct.

(Tr. at 75.) Nevertheless, police requested entry into the home. Beatty consented.

       In support of its argument that it was reasonable for police to believe Beatty had authority
over the premises, the State argues that “Beatty did not indicate that he was a guest or that he could
not give consent.” (Brief in Opposition to Transfer at 8.) However, it is the State’s burden to prove



                                                  6
that Beatty had the authority to consent. Primus, 813 N.E.2d at 375. In this case, the State failed
to meet its burden because the only evidence the State had to support its position that Beatty had
authority to consent was that Beatty had been to the home on one prior occasion and that he
answered the door to the police, after knocking to gain entry himself. These facts do not
demonstrate that the police had a reasonable belief that Beatty had authority over the premises.
On the contrary, and notably, Detective Campbell testified that he had no idea if Beatty had any
authority at all to consent to police entry.


        The State also argues that Beatty had an “affiliation with [the] residence” because police
observed him there on a prior occasion and he “acted as though he had authority to decide who
could or could not enter the home” by answering the door. (Brief in Opposition to Transfer at 8.)
However, there is no legal authority for the proposition that mere “affiliation” with the home is
enough to establish apparent authority. 10 Instead, as discussed above, actual authority requires a
sufficient relationship to or mutual use of the property by persons generally “having joint access
to or control [of the property] for most purposes.” Halsema, 823 N.E.2d at 677 (emphasis added).
To prove apparent authority then, officers needed to prove that they held a reasonable belief that
Beatty had authority over the home; that is, Beatty had joint access to or control of the property
for most purposes. Thus, mere “affiliation” with the home, without more, is not enough to establish
a reasonable belief that the consenting party had authority over the home; nor does merely
answering the door to a home indicate authority over that home. There could be a number of
situations where someone lacking joint access or control over the property, such as a houseguest
or maintenance worker, could answer the door. Beatty’s visit to Bradley’s home on one prior
occasion and the fact that he answered the door do not demonstrate to a reasonable person that
Beatty had joint access and control over the home.


                                               Conclusion

        We hold that under the facts and circumstances of this case, police did not have a
reasonable belief that Beatty had authority to consent to a search of Bradley’s home. Because

10
   The State conceded at oral argument that the term “affiliation” does not have any legal significance in
this context.



                                                    7
police did not have a warrant and Beatty did not have apparent authority to consent to police entry
into Bradley’s home, the police entry into and subsequent protective search of Bradley’s home
violated his Fourth Amendment rights. Accordingly, all evidence seized as the fruit of that
warrantless entry and the subsequent protective search should be suppressed. 11 We therefore
reverse the trial court's denial of Bradley’s motion to suppress and remand for further proceedings
consistent with this opinion.


Rush, C.J., Rucker, Massa and Slaughter, J.J., concur.




11
   Generally speaking, evidence obtained pursuant to an unlawful search or seizure must be excluded under
the fruit of the poisonous tree doctrine. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013) (citations omitted).
The fruit of the poisonous tree doctrine has also been applied to illegal entry into a residence. See Hanna
v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000) (Police did not have probable cause to make initial entry
into the residence. Thus, all drugs obtained in the home were fruits of the illegal search and were properly
suppressed).




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