                                                                             FILED
                                                                       Jan 06 2017, 8:46 am

                                                                             CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Gregory F. Zoeller
Anderson, Indiana                                          Attorney General of Indiana

                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Mario Deon Watkins,                                        January 6, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A01-1510-CR-1624
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                        Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1412-F2-5337



Brown, Judge.




Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                     Page 1 of 26
[1]   Mario Deon Watkins appeals his convictions for two counts of possession of a

      controlled substance as class A misdemeanors, possession of cocaine as a level

      6 felony, possession of marijuana as a class B misdemeanor, and maintaining a

      common nuisance as a level 6 felony. Watkins raises two issues, one of which

      we find dispositive and which we revise and restate as whether the court abused

      its discretion or erred in admitting evidence discovered as a result of a search.

      We reverse.


                                       Facts and Procedural History

[2]   At some point, a confidential informant told Evansville Police Detective Chris

      Goergen that he had observed cocaine, marijuana, and a firearm at a residence

      in Evansville. In the late afternoon or early evening on December 16, 2014,

      Detective Goergen spoke with the informant who had seen the firearm in the

      residence earlier that day. The informant confirmed through a photo that

      Watkins was the individual he saw inside the residence with narcotics and a

      gun.


[3]   On December 17, 2014, Detective Goergen completed an affidavit for a search

      warrant, which alleged that cocaine and other evidence was being concealed in

      or about the premises and curtilage located at 314 W. Illinois Street in

      Evansville. The affidavit alleged:

              Within 48 hours of December 16, 2014, a credible and reliable
              confidential informant (hereinafter “CI”) observed more than ten
              (10) grams of crack cocaine inside of 314 W. Illinois St.,
              Evansville, IN. Your Affiant met with CI and had CI direct him
              to the residence in your Affiant’s vehicle. Law enforcement has
      Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 2 of 26
        had prior dealings with Frederick A. Jackson (D.O.B.:
        12.26.1985) at 312 W. Illinois St., Evansville, IN. CI advised
        that Jackson had moved from 312 W. Illinois St. to 314 W.
        Illinois St., Evansville, IN. As noted above in the description,
        312 W. Illinois St. and 314 W. Illinois St. are both located in the
        same building.


        During surveillance on 314 W. Illinois St., Evansville, Indiana in
        the early morning hours of December 17, 2014, Detectives came
        to determine that at least one (1) resident of 314 W. Illinois St.,
        Evansville, IN is Mario Watkins (D.O.B.: 8.4.1985). An attempt
        to secure a photograph of Frederick A. Jackson (D.O.B.:
        12.26.1985) for comparison proved fruitless.


        With respect to CI’s credibility and reliability: CI has been
        working with Detectives with the Evansville Vanderburgh
        County Joint Drug Task Force for over one (1) year. The
        information provided by CI has led to the arrest of numerous
        individuals involved in narcotics activity. The arrests made on
        the information provided by CI have resulted in convictions on
        both the federal and state level. CI has provided information that
        has been utilized on judicially issued search warrants.
        Information provided by CI has led to the seizure of multiple
        pounds of narcotics in the Evansville, Vanderburgh County,
        Indiana area.


Confidential Exhibits at 28-29. The affidavit also alleged:


        Your affiant has learned in his training and experience that
        persons involved in the dealing of narcotics frequently possess or
        carry firearms either in trade for narcotics or for protection of
        their narcotics dealing assets, both product and proceeds.


        Your affiant speaks from personal knowledge and observation
        and believes that the persons giving the information contained

Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017    Page 3 of 26
               herein speak from personal knowledge and observation and are
               reliable and credible in that they voluntarily relayed the above
               information to your affiant in the course of your affiant’s duties
               as a law enforcement officer in an effort to aid in the
               investigation of this offense.


      Id. at 33. The trial court granted a search warrant.


[4]   Detective Goergen relayed the address, the names of the persons who were

      possibly inside the building, and that there was a firearm and cocaine seen

      inside at some point the day before to the assisting investigators and the

      Evansville SWAT team. In the briefing, the SWAT team were informed that

      there was a woman and three men inside and a firearm. Evansville Police

      Detective Michael Gray, a member of the SWAT team, decided with other

      members of the team how to execute the entry into the house based on

      information that a gun was seen in the house within the last twenty-four hours,

      that there were narcotics in the house, and the criminal history of the possible

      suspects.


[5]   On December 17, 2014, Detective Goergen surveilled the house for “an hour,

      an hour and a half . . . give or take, 15, 30 minutes or so,” prior to executing the

      warrant. Transcript at 34. Another detective surveilling the property informed

      Detective Goergen that he had seen someone matching Watkins’s description

      exit the house and go out to the back of the house with trash cans and then re-

      enter.




      Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017    Page 4 of 26
[6]   The SWAT team rode in a Lenco Bearcat that followed a patrol vehicle to the

      residence. At least a dozen officers were involved. Upon arrival and prior to

      entry, three officers and a police vehicle approached the rear of the residence

      and at least nine officers, most armed with assault weapons, approached the

      front of the residence. At 10:30 a.m., the police knocked on the residence and

      one of the officers announced, “Police - Search Warrant - Police - Search

      Warrant,” and another officer announced over a loudspeaker “Search Warrant.

      314 Illinois.” State’s Exhibit 1 at 3:55-4:00. One second later, the SWAT team

      knocked down the door with a battering ram. State’s Exhibit 1 at 4.01.


[7]   Evansville Police Officer Jacob Taylor, a member of the SWAT team, had a

      GoPro camera attached to his helmet and recorded the entry. He was

      responsible for deploying a “flash bang,” which is a diversionary device that

      emits a bright flash and a loud bang. Transcript at 66. He testified that he

      conducted a quick peek inside, which was the standard procedure, and saw a

      couch, a TV, and some other things that were “kind of past the couch and then

      just next to the couch was the floor and there wasn’t anything in the floor,” and

      he did not see any children. Id. at 67. Detective Gray testified that he paused

      at the front door, “actually kind of worked the angle, as [he] was standing

      covering the front door [he] could see down the right wall on the right side of

      the room but [he] couldn’t see what was to the left” and did not know who was

      in the room. Id. at 55. One of the officers announced: “Flash bang, flash bang,




      Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 5 of 26
      flash bang.” 1 State’s Exhibit 1 at 4:00-4:05. Officer Taylor set or “basically

      dropped” or tossed the flash bang, 2 which has a time delay of one and one-half

      seconds and is designed to interrupt a person’s ability to observe, decide, and

      act, “right there at the front door, the bottom left hand corner just inside the

      residence.” Transcript at 56, 83. The device activated six inches inside the

      door and emitted a “pretty loud” noise and a flash of light. Id. at 59. After the

      flash bang grenade was deployed, Detective Gray entered the residence and

      picked up a nine-month old baby crying on top of blankets in a playpen just

      inside and “very close to the door.” Id. at 332. The room also contained a

      baby’s car seat and a toddler’s activity center in the line of sight of the front

      door. One of the officers moved the car seat with his foot to proceed further

      into the residence. Officer Taylor took the baby out of the house, handed the

      baby to a woman dressed in street clothes, and then returned to the house.

      Meanwhile, other officers smashed in the kitchen window and threw another

      flash bang grenade inside that filled the room with smoke and set off the smoke

      detectors.


[8]   Detective Gray encountered Watkins laying on a bed in a room towards the

      middle of the house. Watkins offered no resistance, and Detective Gray and

      Officer Kennedy detained him until the SWAT team completed clearing the




      1
       The first statement of the phrase “flash bang” occurred while the door was not fully open. State’s Exhibit 1
      at 4:00-4:05.
      2
          The video of the placing of the flash bang into the residence reveals some forward motion of the device.


      Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                          Page 6 of 26
       house. Two other men and a woman were discovered in the back of the house.

       The police also broke open a locked door leading to the laundry room.


[9]    Before receiving his Miranda warnings and while the police were bringing him

       out and sitting him on the curb outside, Watkins stated that everything in the

       house belonged to him and that “they have nothing to do with it.” Id. at 313.

       Detective Gray read Watkins his Miranda rights, and Watkins said that he

       understood his rights. Detective Goergen asked him if he had been advised of

       his Miranda warnings, and he again stated that everything in the house was his,

       that he could show him where everything was, and that he could give him

       information on other drug dealers in return for not taking him to jail or

       charging him. The police discovered narcotics and marijuana, a digital scale, a

       cut corner baggie, cocaine, and a .40 caliber handgun.


[10]   On December 19, 2014, the State charged Watkins with Count I, dealing in a

       schedule II controlled substance as a level 2 felony; Count II, dealing in cocaine

       as a level 3 felony; Count III, unlawful possession of a firearm by a serious

       violent felon as a level 4 felony; Count IV, dealing in a schedule IV controlled

       substance as a level 4 felony; Count V, dealing in marijuana as a level 6 felony;

       Count VI, maintaining a common nuisance as a level 6 felony; and Count VII,

       neglect of a dependent as a level 6 felony. On August 25, 2015, the State filed

       an amended Count II alleging that the offense was committed in the presence of

       a minor.




       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 7 of 26
[11]   Watkins filed a motion to suppress on March 6, 2015, and an amended motion

       on April 13, 2015. He alleged that the seizure of the items was without lawful

       authority because the search was conducted pursuant to an invalid warrant, the

       manner of the search and execution of the warrant violated the Fourth

       Amendment to the United States Constitution and Article 1, Sections 11, 13,

       and 14 of the Indiana Constitution, and the affidavit of probable cause filed to

       support the issuance of the warrant was insufficient to establish probable cause.

       He also alleged that his statements were made without being adequately

       advised of his Miranda rights.


[12]   On May 4, 2015, the court held a hearing on Watkins’s motion to suppress.

       Detective Goergen testified that he had worked with the confidential informant

       extensively over the course of sixteen to eighteen months, that the informant

       “by all accounts and everybody in the drug task force has been established as

       one of the most credible informants in the history of the drug task force,” and

       that the informant’s information has led to the arrest of dozens of individuals

       and convictions. Transcript at 22. Detective Goergen also testified that, prior

       to the execution of the search warrant, Detective Watson was able to locate the

       name of Mario Watkins as being involved at 314 W. Illinois, Detective

       Goergen forwarded a picture of Watkins to the informant, and the informant

       confirmed that Watkins was the individual to whom he was referring.


[13]   Detective Gray testified, and when asked if he recalled the criminal history of

       the occupants, he answered: “No I don’t, I mean I think there was some sort of

       drug history and a violent act but I can’t say for sure.” Id. at 51. He testified

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 8 of 26
       that he did not toss the flash bang into the residence but that “whoever is

       charged with ensuring that they deploy [a distraction] device is also charged

       with ensuring that they deploy it into a safe area” and that “you wouldn’t want

       to throw it on any children, you wouldn’t want to throw it if there was a meth

       lab, flammable’s [sic], bond [sic] making materials, different things like that, so

       it is the job of the operator that’s actually deploying the device to do the quick

       peek to check.” Id. at 63. He also acknowledged that the flash bang could

       catch a carpet on fire.


[14]   Officer Taylor testified that he had been with SWAT for eight years and that

       before he deploys a flash bang and as the door is breached “there’s a quick peek,

       a lot of things were [sic] looking for, people, kids, elderly, smells, and then it

       gets placed there at the threshold.” Id. at 66-67. When asked if he believed that

       he complied with the safety protocol, Officer Taylor testified: “Yes, even more

       so than our standards are.” Id. at 73. He also stated that the SWAT team

       carries a fire extinguisher.


[15]   The court admitted the video from the camera that was mounted to Officer

       Taylor’s helmet as State’s Exhibit 1. Officer Taylor testified that his perception

       of things involved a much wider view than what the camera could see. At a

       time stamp of 4:01 on the video, a member of the SWAT team rammed the

       door open several inches with a battering ram. From an angle to the right,

       Officer Taylor tossed the flash bang into the house at 4:02, and it detonated at

       4:04. The video at 4:02 shows only a portion of the right rear of the couch and

       the wood floor on which it sat. The video reveals that about five minutes after

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 9 of 26
       the initial entry someone stated: “Make sure you get a picture . . . are you

       taking a picture of that?” State’s Exhibit 1 at 8:50-8:55. This appears to be a

       reference to a charred stain on the floor. The person then stated: “Because the

       baby was in this room, but I put it right there for a reason.” Id. at 8:55-9:00.


[16]   On cross-examination, Officer Taylor testified that his vantage point was what

       was on the video because the camera was mounted to his helmet. After the

       video was played, Watkins’s counsel asked Officer Taylor: “So you’re saying

       from the angle depicted there you could see inside that room?” Transcript at

       82. Officer Taylor answered: “I can see, I can see from the couch over to the

       left, I can’t see the corner, the left corner inside the room and I can’t see the

       hallway in front of it, that’s why the flash bang goes in the threshold.” Id. at 82-

       83.


[17]   On May 22, 2015, the court denied Watkins’s motion to suppress. On May 26,

       2015, Watkins filed a motion for interlocutory appeal. The trial court certified

       the order, and this court denied Watkins’s motion for leave to appeal from the

       interlocutory order.


[18]   On August 17, 2015, the State filed a motion in limine arguing that the

       introduction of evidence that a flash bang grenade was deployed in the same

       room where Watkins’s small child was located would be objectionable, highly

       prejudicial, and irrelevant. The court found that the means of entry into the

       home had some relevance to the case and stated that it would allow testimony

       regarding the use of the SWAT team to make entry into the home and the


       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 10 of 26
       location of the individuals, including the child, in the home at the time of entry.

       The court also found that the use of a flash bang grenade had little or no

       relevance to the charged offenses and that the prejudicial effect of such evidence

       outweighed any probative value of the evidence.


[19]   In August 2015, the court held a jury trial during which Watkins referred to his

       motion to suppress and objected to any evidence seized from the house

       including statements made by those who were extracted from the house. The

       court incorporated Watkins’s earlier arguments and allowed him to make a

       continuing objection.


[20]   After the State rested and outside the presence of the jury, Watkins’s counsel

       questioned Detective Goergen regarding the video of the search and the

       location of the baby. Detective Goergen testified: “I think you can see like the

       octagon shaped playpen, I know where the baby was at, it was very close to the

       door.” Id. at 332. Watkins’s counsel argued that “this tape would tend to show

       that the child was not in the physical presence of any controlled substances at

       that time because there were no controlled substances found in the living[

       ]room.” Id. at 336. The prosecutor argued that the only purpose of introducing

       the video was to show the flash bang grenade and the violent nature of the

       SWAT entry and that such violated the court’s order on the motion in limine.

       The court indicated that it would not allow the flash bang evidence, and that a

       portion of the video could be played without evidence of the flash bang. A

       portion of the video between 4:20 and 4:30 on the recording, which showed

       Officer Taylor picking up the baby and exiting the residence, was played for the

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 11 of 26
       jury without sound. The defense then rested and moved for a motion for

       judgment on the evidence, and the court denied the motion.


[21]   The jury found Watkins guilty of the lesser-included offense of possession of a

       schedule II controlled substance as a class A misdemeanor, the lesser-included

       offense of possession of cocaine as a level 6 felony, the lesser-included offense

       of possession of a schedule IV controlled substance as a class A misdemeanor,

       the lesser-included offense of possession of marijuana as a class B

       misdemeanor, and maintaining a common nuisance as a level 6 felony. The

       State moved to dismiss the possession of a firearm by a serious violent felon and

       neglect of a dependent counts, and the court dismissed those counts.


[22]   On September 23, 2015, the court sentenced Watkins to an aggregate sentence

       of two years executed at Vanderburgh County Work Release.


                                                     Discussion

[23]   The issue is whether the trial court abused its discretion in admitting evidence

       discovered as a result of the search. Generally, we review the trial court’s ruling

       on the admission or exclusion of evidence for an abuse of discretion. Roche v.

       State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only where

       the decision is clearly against the logic and effect of the facts and circumstances.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. In reviewing the

       trial court’s ruling on the admissibility of evidence from an allegedly illegal

       search, an appellate court does not reweigh the evidence but defers to the trial

       court’s factual determinations unless clearly erroneous, views conflicting


       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 12 of 26
       evidence most favorably to the ruling, and considers afresh any legal question of

       the constitutionality of a search or seizure. Meredith v. State, 906 N.E.2d 867,

       869 (Ind. 2009).


[24]   In ruling on admissibility following the denial of a motion to suppress, the trial

       court considers the foundational evidence presented at trial. Carpenter v. State,

       18 N.E.3d 998, 1001 (Ind. 2014). If the foundational evidence at trial is not the

       same as that presented at the suppression hearing, the trial court must make its

       decision based upon trial evidence and may consider hearing evidence only if it

       does not conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1

       (Ind. 2014).


[25]   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.


[26]   Although its text mirrors the federal Fourth Amendment, we interpret Article 1,

       § 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). Generally, “[w]e consider three

       factors when evaluating reasonableness: ‘1) the degree of concern, suspicion, or
       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 13 of 26
       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)). 3 “[T]he degree of intrusion may render a search

       unreasonable, even where law enforcement needs are obviously present.”

       Litchfield, 824 N.E.2d at 360.


[27]   Watkins argues that the officers’ military-style assault that involved announcing

       their presence seconds before crashing through the door with a battering ram

       and then one second later tossing a flash bang grenade into the front room of

       the house, which contained only a nine-month old baby, was an unreasonable

       use of force in the execution of the search warrant. He argues that there was

       little evidence that this case involved a high risk entry, and that while Officer




       3
         The State argues that the factors discussed in Litchfield are inapplicable under the facts of this case because
       the search discussed in Litchfield was a warrantless search and the three factors are relevant to a determination
       of reasonableness when a warrantless search occurs. See Appellee’s Brief at 25 (citing Mehring v. State, 884
       N.E.2d 371, 381 n.4 (Ind. Ct. App. 2008), reh’g denied, trans. denied). The State asserts that the manner of the
       search still has to be reasonable under the totality of the circumstances and that even if this Court were to find
       that the factors in Litchfield apply, the factors are satisfied here. In Mehring, the Court noted that the
       defendant referenced the three factors discussed in Litchfield as applicable to a determination of a staleness
       issue and whether there was probable cause for the issuance of a search warrant. 884 N.E.2d at 381 n.4. The
       Court then stated: “Because the search discussed in Litchfield was a warrantless search and the three factors
       are relevant to a determination of reasonableness when a warrantless search occurs, we do not agree that they
       are applicable under the facts of this case.” Id. In Lacey v. State, the Court addressed a defendant’s challenge
       to the trial court’s denial of his motion to suppress evidence obtained from the execution of a search warrant
       by police. 946 N.E.2d 548, 548 (Ind. 2011), reh’g denied. In its analysis, the Court referenced the Litchfield
       factors. Id. at 550. See also Smith v. State, 953 N.E.2d 651, 659 (Ind. Ct. App. 2011) (addressing a search
       conducted pursuant to a warrant, citing Litchfield for the propositions that the legality of a governmental
       search turns on an evaluation of the reasonableness of the police conduct under the totality of the
       circumstances and that although there may well be other relevant considerations, the reasonableness of the
       search or seizure turns on a balance of (1) the degree of concern, suspicion, or knowledge that a violation has
       occurred, (2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary
       activities, and (3) the extent of law enforcement needs), trans. denied. We cannot say that the Litchfield factors
       do not apply.



       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                          Page 14 of 26
       Taylor claimed that he peeked in the room before tossing the grenade, his video

       belies this claim. He also asserts that the no-knock entry was unreasonable.


[28]   The State argues that the use of the flash bang device was not a part of the

       search and to the extent the use of the device caused any harm, this could be the

       basis of a civil suit but should not be a vehicle for the suppression of the

       evidence. It also argues that, to the extent the use of the device was a part of

       the search, its use was reasonable given that the police had received reliable

       information that there was marijuana and ten grams of cocaine inside

       Watkins’s residence, that Watkins had a firearm, and that the possible suspect

       inside the residence had a criminal history of a violent act. The State notes that

       Officer Taylor, who deployed the flash bang device, testified that he looked

       inside first and only deployed the grenade when he did not see anyone in the

       front room. The State asserts that, even though the video shows that there was

       a baby in the front room, this may not have been clear to Officer Taylor at the

       moment of entry because the baby was on the floor in an enclosed playpen-type

       area and at least partially hidden by the white plastic lattice bars of the playpen.

       The State contends that this was not a no-knock entry as the officers announced

       their presence and then waited a few seconds before they broke through the

       front door. It also asserts that even if this had been a no-knock entry, it would

       have been reasonable given that officers knew that cocaine and marijuana were

       present at the residence and that they could be facing an armed and dangerous

       individual. The State also suggests that we adopt the inevitable

       discovery/independent source exception as a matter of Indiana constitutional


       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 15 of 26
       law. In reply, Watkins asserts that the inevitable discovery doctrine has not

       been adopted as a matter of Indiana constitutional law and that this Court has

       expressly refused to adopt it.


[29]   Applying the factors articulated in Litchfield, we first consider “the degree of

       concern, suspicion, or knowledge that a violation has occurred.” Litchfield, 824

       N.E.2d at 361. According to the affidavit, a credible and reliable confidential

       informant observed more than ten grams of crack cocaine inside the residence

       within forty-eight hours of December 16, 2014, the day before the warrant was

       executed. The informant confirmed through a photograph that Watkins was

       the individual he saw inside the residence with narcotics and a gun. The

       informant also observed marijuana, but the record does not reveal when the

       informant observed the marijuana or whether Watkins or Jackson personally

       possessed the marijuana or attempted to sell it to the informant.


[30]   Regarding the degree of intrusion, we agree with Watkins’s characterization of

       the execution of the search warrant as a “military-style assault.” Appellant’s

       Brief at 25. The record reveals that at least a dozen officers surrounded the

       residence, most of whom were armed with assault weapons. At the front door,

       the officers knocked and announced their presence seconds before using a

       battering ram to crash open the front door and then tossed a flash bang device

       inside the residence no more than one second later and in a room containing a

       nine-month old baby in a playpen. That room which the SWAT team entered

       also contained a baby’s car seat and a toddler’s activity center in the line of sight

       of the front door. One of the officers announced: “Flash bang, flash bang, flash

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 16 of 26
       bang.” State’s Exhibit 1 at 4:00-4:05. The first statement of the phrase “flash

       bang” occurred while the door was not fully open. State’s Exhibit 1 at 4:00-

       4:05. The video shows almost no time lapse between when the door was

       battered in and the tossing of the flash bang. The door was barely opened when

       the flash bang was immediately tossed into the room, and the angle at which

       Officer Taylor was standing to the door did not allow him an opportunity to see

       what was inside the room. Indeed, Officer Taylor acknowledged that he could

       not see portions of the room in which the flash bang was placed. Specifically,

       he testified that he could see “from the couch over to the left, I can’t see the

       corner, the left corner inside the room and I can’t see the hallway in front of it,

       that’s why the flash bang goes in the threshold.” Transcript at 82-83. The

       audio from the recording reveals what appears to be Officer Taylor stating:

       “Because the baby was in this room, but I put it right there for a reason.”

       State’s Exhibit 1 at 8:55-9:00. Officer Taylor took the baby out of the house

       and handed the baby to a woman dressed in street clothes.


[31]   While Officer Taylor testified that that the burn mark from the flash bang can

       be seen six inches inside the door, Detective Goergen testified: “I think you can

       see like the octagon shaped playpen, I know where the baby was at, it was very

       close to the door.” Transcript at 332. Other officers smashed in the kitchen

       window and threw a flash bang grenade inside that filled the kitchen with

       smoke and set off the smoke detectors. They handcuffed Watkins and took him

       outside to sit on the curb. They searched his house, breaking open a locked

       door leading to the laundry room in the process.


       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 17 of 26
[32]   As to the extent of law enforcement needs, the officers were aware that the

       informant had reported observing more than ten grams of cocaine and

       marijuana in the residence. Detective Goergen testified that the informant told

       him that he also saw a firearm in the residence on the 16th, the day before the

       warrant was executed. Officer Taylor testified that the SWAT team held a

       briefing before entering the residence and their planning information indicated

       that there were three males and a woman inside. As to the criminal histories of

       Watkins and the others, the affidavit asserts that “[l]aw enforcement has had

       prior dealings with Frederick A. Jackson,” but it did not specifically describe

       the contents of these prior dealings. Confidential Exhibits at 28. During direct

       examination, Detective Gray testified that they decided on how they were

       going to execute the entry into the house based upon the information they were

       given by the case agent and detectives. The following exchange then occurred:

               Q When you said based on information that was provided by the
               case agent and other assisting officers, what information are you
               referring to?


               A Information that a gun was seen in the house very recently, as
               I recall within the last 24 hours, and narcotics being in the house
               and then the possible suspects, the criminal history involved
               there.


               Q Do you recall what the criminal history was?


               A No I don’t, I mean I think there was some sort of drug history
               and a violent act but I can’t say for sure.



       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 18 of 26
Transcript at 51. During cross-examination of Detective Gray, the following

exchange occurred:

        Q You mentioned prior criminal history as one of the factors in
        your determination for the method of entry but you don’t recall
        exactly what that was, you don’t recall exactly what his criminal
        record was?


        A No, I’m fairly certain it’s documented on the . . .


        Q It is.


        A Okay.


        Q It is.


        A But I don’t, I don’t recall it.


        Q Did he have a conviction for burglary and robbery in the year
        of 2004?


        A I would have to look at his record.


        Q Do you know if he had any other criminal record?


        A I don’t.


Id. at 62. The State does not point us to any other evidence indicating the

criminal history of Watkins or the other occupants of the house. The record

contains no evidence that law enforcement could not have safely presented the


Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 19 of 26
       person matching Watkins’s description with the search warrant during the time

       that he was outside the house and before he re-entered it.


[33]   Comparing the factors, we conclude that while there was a considerable degree

       of suspicion, the extent of law enforcement needs for a military-style assault

       was low and the degree of intrusion was unreasonably high. Under these

       specific circumstances and particularly in light of the use of a flash bang

       grenade in the same room as a nine-month old baby who was “very close” to

       where the flash bang was deployed, the State has not demonstrated that the

       police conduct was reasonable under the totality of the circumstances. We

       conclude that the search violated Watkins’s rights under Article 1, Section 11 of

       the Indiana Constitution and that the trial court erred in admitting the evidence

       discovered as a result of the search. 4


[34]   To the extent the State suggests that we adopt the inevitable discovery

       exception as a matter of Indiana constitutional law, we observe that under the

       Fourth Amendment, the inevitable discovery exception to the exclusionary rule

       “permits the introduction of evidence that eventually would have been located

       had there been no error, for [in] that instance ‘there is no nexus sufficient to

       provide a taint.’” Shultz v. State, 742 N.E.2d 961, 965 (Ind. Ct. App. 2001)

       (quoting Banks v. State, 681 N.E.2d 235, 239 (Ind. Ct. App. 1997) (quoting Nix

       v. Williams, 467 U.S. 431, 438, 104 S. Ct. 2501 (1984))), reh’g denied, trans.



       4
        Because we find that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana
       Constitution, we need not address his argument that the search warrant affidavit lacked probable cause.

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                     Page 20 of 26
       denied. However, the inevitable discovery exception has not been adopted as a

       matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935

       (Ind. Ct. App. 2002), trans. denied. The Indiana Supreme Court has held that

       “our state constitution mandates that the evidence found as a result of [an

       unconstitutional] search be suppressed.” Brown v. State, 653 N.E.2d 77, 80 (Ind.

       1995). See also Grier v. State, 868 N.E.2d 443, 445 (Ind. 2007) (“Evidence

       obtained as a result of an unconstitutional search must be suppressed.”).

       Despite the State’s request, we are not inclined to adopt the inevitable discovery

       rule as part of Indiana constitutional law in light of the Indiana Supreme

       Court’s firm language. See Gyamfi v. State, 15 N.E.3d 1131, 1138 (Ind. Ct. App.

       2014) (declining to adopt the inevitable discovery rule as part of Indiana

       constitutional law in light of the Indiana Supreme Court’s firm language in

       Brown), reh’g denied; Ammons, 770 N.E.2d at 935.


                                                     Conclusion

[35]   For the foregoing reasons, we reverse Watkins’s convictions.


[36]   Reversed.


       Baker, J., concurs.


       May, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 21 of 26
       ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
       Matthew J. McGovern                                        Gregory F. Zoeller
       Anderson, Indiana                                          Attorney General of Indiana

                                                                  Monika Prekopa Talbot
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Mario Deon Watkins,                                        Court of Appeals Case No.
                                                                  82A01-1510-CR-1624
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       May, Judge, dissenting.


[37]   Unlike my colleagues, I would hold the search of Watkins’ residence was

       reasonable under the totality of the circumstances. I therefore respectfully

       dissent.




       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017             Page 22 of 26
[38]   I believe the majority’s analysis underestimates “the extent of law enforcement

       needs.” Powell v. State, 898 N.E.2d 328, 336 (Ind. Ct. App. 2008), trans. denied.

       The confidential informant, whose credibility had been established, reported

       meeting Watkins at the house to be searched less than twenty-four hours before

       the search was to be conducted and, at that time, Watkins was in possession of

       a handgun. Police believed three men and a woman would be in the house. 5

       Detective Gray recalled that Watkins had a criminal history that included a

       violent crime and he remembered considering that information as the SWAT

       team decided how to enter the residence. 6 Detective Goergen testified “the fact




       5
         The majority suggests police should have served the search warrant on “the person matching Watkins’
       description . . . during the time that he was outside of the residence.” Slip op. at 21, ¶ 32. However, the
       record does not indicate: (1) how many officers were near the residence conducting surveillance when the
       man who looked like Watkins exited the back of the house; or (2) whether those officers possessed a copy of
       the search warrant to serve. I simply do not believe we should expect what may have been only one or two
       police officers to serve a search warrant on a man outside a house thought to have three additional adult
       occupants, at least one gun, and large quantities of drugs that could be destroyed while the premises are being
       secured.
       6
         I also disagree with my colleagues’ assessment of the evidence about Watkins’ criminal history. When
       asked about Watkins’ criminal history, Detective Gray said, “I think there was some sort of drug history and
       a violent act but I can’t say for sure.” (Tr. at 51.) When asked again on cross-examination, Detective Gray
       said, “I’m fairly certain it’s documented,” (id. at 62), and defense counsel responded, “It is.” (Id.) Thus, the
       question is not “whether” Watkins has a criminal record, only “which crimes” his record contains.
       The charging information alleged Watkins was guilty of possession of a firearm by a serious violent felon
       because he had a conviction of “Burglary Resulting in Bodily Injury in Cause Number 82D02-0403-FA-200.”
       (App. Vol. 1 at 20.) The trial court had granted Watkins’ motion to sever that count from the other charges
       for trial, (id. at 7), and had refused to lower Watkins’ bond after a hearing in which Watkins’ counsel asked
       him if he was serving probation or parole for the “prior conviction of burglary in 2014,” (id. at 5), and
       Watkins replied, “It was 2004.” (Id.) The State’s memorandum in opposition to the motion to suppress
       noted:
                At the time the warrant was executed, officers knew that the Defendant had a prior
                conviction for Burglary as a B felony, which makes the Defendant a serious violent felon.
                Officers also knew that one of their most credible and reliable informants had seen the
                Defendant inside the residence with the firearm the evening prior to making entry. The
                Defendant’s possession of a firearm with his status as a serious violent felon is a crime in
                and of itself and presents an alarming danger to officers’ safety.

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                         Page 23 of 26
       that there was a firearm on Mr. Watkins didn’t necessarily in my opinion

       enhance probable cause for the search warrant but it was a, it’s a safety issue for

       the investigators.” (Tr. Vol. 2 at 37.) Because the police were executing a

       search warrant on the home of a convicted violent felon believed to be in

       possession of a handgun and a large amount of illegal drugs, I would conclude

       the law enforcement need was high.


[39]   In light of the manner in which the search warrant was executed, I conclude the

       degree of intrusion into Watkins’ privacy was high, but not “unreasonably” so.

       Cf. slip op. at 21, ¶ 33 (“the degree of intrusion was unreasonably high”). Police

       had already obtained a search warrant, which allowed them to enter Watkins’

       home, breaking down the door if necessary, and search in any spot that might

       conceal drugs. Thus, regardless of the precise manner of execution, police had

       been given authority to intrude into Watkins’ personal residence, drag him

       outside in handcuffs, and turn his residence upside down.


[40]   Furthermore, while I expect the police would never knowingly detonate a flash

       bang near a child, 7 I do note that the principal function of a flash bang is “to




       (Id. at 36.) While none of this information is evidence that proves Watkins had a criminal record that
       included a violent crime, it demonstrates the officers conducting the search had reason to believe Watkins
       had been convicted of a violent felony as they were determining how to execute the search warrant.
       Finally, if the trial court doubted the existence of Watkins’ Class B felony burglary conviction under Cause
       Number 82D02-0403-FA-200, it could have taken judicial notice of that fact, just as we may. See Ind.
       Evidence Rule 201; (App. Vol. 2 at 189 (PSI demonstrates Watkins pled guilty to Class B felony burglary
       resulting in bodily injury in 2004).)
       7
         As the Seventh Circuit has noted, “potentially serious injuries . . . may arise from the use of a flash-bang
       device during a search.” United States v. Folks, 236 F.3d 384, 388 (7th Cir. 2001) (citing cases involving
       injuries), cert. denied 534 U.S. 830 (2001). “Children are especially vulnerable” to injury if they are near the

       Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                          Page 24 of 26
protect officers from weapons fire,” United States v. Jones, 217 F.3d 836, 838 (7th

Cir. 2000), and that our Section 11 analysis of reasonableness should “include

consideration of police officer safety.” Mitchell v. State, 745 N.E.2d 775, 786

(Ind. 2001). As the Mitchell court noted:


         In construing and applying “unreasonable” under Section 11, we
         recognize that Indiana citizens have been concerned not only
         with personal privacy but also with safety, security, and
         protection from crime. Indeed, the Indiana Constitution was
         adopted to the end that “justice be established, public order
         maintained, and liberty perpetuated.” Ind. Const. preamble. Its
         framers and ratifiers declared in Article 1 of its Bill of Rights that
         government is “instituted for [the people’s] peace, safety, and
         well-being.” Ind. Const. art. 1, § 1.


Id. (modifications in original). If we are going to ask police officers, as

protectors of the general public’s safety and security, to enter the home of four

adults, one of whom is a violent felon in possession of a handgun who sells

drugs out of the house, I believe we must allow those officers some means by

which to protect themselves from the danger that can be inherent in such an

entrance.


There certainly could be cases in which the use of a flash bang device may

render a search constitutionally unreasonable. But this is not such a case. My




detonation location. United States v. Jones, 214 F.3d 836, 838 (7th Cir. 2000) (refusing to suppress evidence in
criminal trial based on inevitable discovery doctrine). Detonation of flash bang grenades near innocent
people has led to tort claims against the government. See, e.g., Milan v. Bolin, 795 F.3d 726 (7th Cir. 2015)
(police officers are not shielded from liability by qualified immunity when their execution of a search warrant
was unreasonable), cert. denied 136 S. Ct. 1162 (2016).

Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017                        Page 25 of 26
analysis of the Litchfield factors leads me to conclude the search of Watkins’

house was reasonable under the totality of the circumstances. Accordingly, I

see no error in admitting the evidence gathered pursuant to the search warrant

in Watkins’ criminal trial, and I respectfully dissent.




Court of Appeals of Indiana | Opinion 82A01-1510-CR-1624 | January 6, 2017   Page 26 of 26
