MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 23 2020, 10:41 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Curtis T. Hill, Jr.
Dattilo Law Office                                       Attorney General
Madison, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Albritton,                                        June 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2928
        v.                                               Appeal from the
                                                         Jefferson Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Michael J. Hensley, Judge
                                                         Trial Court Cause No.
                                                         39D01-1901-F6-45



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020                       Page 1 of 9
                                          Case Summary
[1]   Joshua Albritton appeals the trial court’s denial of his motion to suppress. We

      affirm.



                            Facts and Procedural History
[2]   Albritton and C.T. have a child together, K.A. On October 23, 2018, the

      Jefferson Circuit Court issued an ex parte order for protection prohibiting

      Albritton from “harassing, annoying, telephoning, contacting, or directly or

      indirectly communicating with” C.T. Appellant’s App. Vol. II p. 37. In

      addition, Albritton was “ordered to stay away from the residence” of C.T. Id.

      The order expires October 23, 2020.


[3]   On January 6, 2019, C.T. found a package on the doorstep of her house and

      took it inside. When the package started to “buzz,” she took it back outside and

      called the police. Tr. p. 6. Madison Police Department Officer Daniel Slygh

      responded to the call and observed that the package had a card that read:

      “Please just let him have this. I will never bad mouth you to him. I swear. I just

      want to love my son.” Id. Officer Slygh opened the package and found a drone

      and cell phone inside. The cell phone had missed calls from “Dad.” Id. at 7.


[4]   Five days later, on January 11, Officer Slygh went to Albritton’s townhouse.

      His unit shared a concrete porch with the neighboring unit, and a sidewalk led

      away from the porch. Ex. 1. When Officer Slygh knocked on Albritton’s door, a

      female answered. After a brief conversation, the female asked Officer Slygh not

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 2 of 9
to take Albritton to jail. Officer Slygh said he wasn’t there to arrest Albritton

but rather to “interview” him. Tr. p. 9. Officer Slygh asked the female to get

Albritton. After waiting about ten minutes, Officer Slygh returned to his patrol

car. At about the same time, Albritton opened the door, looked around, and

went back inside. As the door closed, Officer Slygh called out to Albritton and

“walked up to the porch.” Id. Albritton opened the blinds on the door, and the

two “spoke through the door.” Id. Officer Slygh told Albritton he “was there

merely to discuss the situation, supplement [his] report and send it” to the

prosecutor’s office. Id. at 9-10. Albritton, however, said he didn’t believe the

officer. After the two had “words,” Officer Slygh said he was “just going to go

ahead and file for [an arrest] warrant.” Id. at 10. When Officer Slygh got about

halfway to his car, Albritton opened the door, stepped onto the porch, and

yelled at Officer Slygh he was a “liar” and there to arrest him. Id. When Officer

Slygh responded that he “was there to follow up on the invasion of privacy

from his child’s mother,” Albritton exclaimed, “You want to take me to jail for

trying to stay in my son’s life.” Id. Believing that Albritton “admitted” to

violating the protective order, Officer Slygh decided to arrest him for invasion

of privacy. Id. at 15. Officer Slygh—who was on the sidewalk—approached

Albritton—who was on the porch—and told him he was under arrest. Id. at 10,

16. When Officer Slygh “went to take custody” of Albritton, Albritton “pulled

away,” went back inside his house, and closed the door. Id. at 10; see also id. at

16 (Officer Slygh testifying that he had his “hands on [Albritton] when he

pulled away”). Officer Slygh opened the door, entered Albritton’s house, and


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 3 of 9
      arrested him. According to Albritton, when Officer Slygh entered his house,

      Officer Slygh tackled him on the stairs. Id.


[5]   The State charged Albritton with Class A misdemeanor invasion of privacy for

      violating the protective order and Level 6 felony resisting law enforcement. The

      resisting charge alleges that Albritton knowingly or intentionally forcibly

      resisted, obstructed, or interfered with Officer Slygh while he was lawfully

      engaged in the execution of his duties and that Albritton injured Officer Slygh

      (injury to his left-forearm tendon) while committing the offense. Appellant’s

      App. Vol. II p. 10. The charging information, however, does not specify

      whether the resisting charge is based on what occurred on the porch or inside

      Albritton’s house.


[6]   Albritton filed a motion to suppress, which provides:


              2. Defendant was arrested . . . following a search and seizure
              resulting from an unlawful, warrantless entry into Defendant’s
              residence by law enforcement.


              3. Any information from the unlawful entry was unlawfully
              obtained because of the absence of any warrant or any exception
              to the warrant requirement.


              4. The entry into Defendant’s residence and the resulting search
              and seizure violates the Fourth Amendment and Article 1,
              Section 11 of the Indiana Constitution.


              WHEREFORE Defendant requests that all evidence obtained as
              a result of the unlawful, warrantless entry into Defendant’s
              residence by law enforcement [sic].
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 4 of 9
      Id. at 42. The motion to suppress doesn’t specifically identify what evidence

      Albritton seeks to suppress other than “all property seized,” “all observations

      made,” and “all statements made” by Albritton. Id.


[7]   At the hearing on Albritton’s motion, Officer Slygh testified to the above

      version of events. Albritton testified similarly, except that he said when he

      opened the door, he stayed in the doorway and “never stepped out onto the

      porch.” In addition, Albritton testified that once Officer Albritton entered his

      house, Officer Albritton tackled him on the stairs. The trial court denied

      Albritton’s motion, explaining:


              8. That “A law enforcement officer may arrest a person when the
              officer has . . . probable cause to believe that the person violated
              I.C. 35-46-1-15.1 (invasion of privacy) or I.C. 35-46-1-15.3.”


              9. That Officer Slygh had probable cause that the defendant had
              violated the protective order and could therefore perform a
              warrantless arrest of the defendant.


              10. Officer Slygh could not, however, make a warrantless entry
              into the defendant’s home to make this arrest. The testimony
              differs dramatically on this issue.


              11. Officer Slygh states that the defendant came outside of the
              residence, stood on the porch, and made an incriminating
              statement. At this time, while the defendant was still outside of
              the residence, the officer advised him that he was under arrest.


              12. The defendant claims he never left the inside of the residence.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 5 of 9
               I3. The Court finds that the defendant appeared outside of his
               home and cannot defeat the officer’s attempt to arrest him by
               fleeing back inside[.]


       Id. at 61.


[8]    This interlocutory appeal now ensues.



                                  Discussion and Decision
[9]    Albritton contends that his Fourth Amendment and Article 1, Section 11 rights

       were violated when Officer Slygh entered his house without a warrant.

       Albritton asks us to reverse the denial of his motion to suppress and order the

       dismissal of the resisting charge. Albritton’s argument assumes that the resisting

       occurred inside his house, after Officer Albritton allegedly entered unlawfully.

       But based on the limited information before us, it could just as easily be based

       on what happened on the porch, before Officer Albritton entered his house.

       Nonetheless, we will address Albritton’s unlawful-entry argument.


[10]   The Fourth Amendment to the United States Constitution protects “[t]he right

       of people to be secure in their persons, houses, papers, and effects against

       unreasonable searches and seizures.” U.S. Const. amend. IV. “A warrantless

       in-home arrest is not valid without probable cause and exigent circumstances

       making it impractical to first procure an arrest warrant.” Lepard v. State, 542

       N.E.2d 1347, 1349 (Ind. Ct. App. 1989) (quotation omitted), reh’g denied.

       Albritton doesn’t argue that Officer Slygh lacked probable cause to make a

       warrantless arrest of him for invasion of privacy. See Ind. Code § 35-33-1-1.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 6 of 9
       Rather, Albritton argues there weren’t any exigent circumstances allowing

       Officer Slygh to enter his house to do so. Traditionally, exigent circumstances

       have been found to exist when “a suspect is fleeing or likely to take flight to

       escape arrest” or “in cases involving hot pursuit or moveable vehicles.” Lepard,

       542 N.E.2d at 1349-50 (quotation omitted); see also Barnes v. State, 946 N.E.2d

       572, 576 (Ind. 2011) (“[O]fficers may enter the home if they are in ‘hot pursuit’

       of the arrestee or if exigent circumstances justified the entry.”), adhered to on

       reh’g, 953 N.E.2d 473 (Ind. 2011). In other words, “a suspect may not defeat an

       arrest which has been set in motion in a public place . . . by the expedient of

       escaping to a private place.” United States v. Santana, 427 U.S. 38, 43 (1976). A

       home’s open doorway is a “public” place. Id.


[11]   Here, Officer Slygh testified that when he got about halfway to his car,

       Albritton opened the door, stepped onto the porch, and yelled at him he was a

       “liar” and there to arrest him. When Officer Slygh responded that he “was there

       to follow up on the invasion of privacy from his child’s mother,” Albritton

       exclaimed, “You want to take me to jail for trying to stay in my son’s life.”

       Based on Albritton’s admission, Officer Slygh decided to arrest him for

       violating the protective order. Officer Slygh—who was on the sidewalk—

       approached Albritton—who was on the porch—and told him he was under

       arrest. When Officer Slygh “went to take custody” of Albritton, he “pulled

       away,” went back inside his house, and closed the door. Officer Slygh opened

       the door, entered Albritton’s house, and arrested him. Because Officer Slygh

       started to arrest Albritton when he was in a public place, Officer Slygh properly


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 7 of 9
       followed Albritton inside his house to finish the arrest. There was no Fourth

       Amendment violation.


[12]   Although Article 1, Section 11 of the Indiana Constitution largely tracks the

       Fourth Amendment, we interpret and apply it independently. Mitchell v. State,

       745 N.E.2d 775, 786 (Ind. 2001). The reasonableness of a search or seizure

       under the Indiana Constitution “turns on an evaluation of the reasonableness of

       the police conduct under the totality of the circumstances.” Litchfield v. State,

       824 N.E.2d 356, 359 (Ind. 2005). Those circumstances include 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. Id. at

       361.


[13]   Albritton concedes that the degree of suspicion weighs in favor of law

       enforcement. Appellant’s Reply Br. p. 9. However, he claims that the other

       factors weigh in his favor. He argues there is no reason that Officer Slygh could

       not have gotten an arrest warrant before going to his house, especially given

       that five days had passed between Officer Slygh going to C.T.’s house to

       investigate the alleged invasion of privacy and Officer Slygh going to his house.

       Although Officer Slygh testified that he believed he had probable cause to arrest

       Albritton before going to Albritton’s house, the situation developed once

       Officer Slygh got there. When Albritton essentially admitted to violating the

       protective order, Officer Slygh decided to arrest him right then and there, as he

       was permitted to do. However, Albritton, who was on his porch, “pulled away”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 8 of 9
       from Officer Slygh as he tried to arrest him. Officer Slygh acted reasonably by

       following Albritton into his house to finish the arrest. There was no violation of

       the Indiana Constitution. We therefore affirm the trial court’s denial of

       Albritton’s motion to suppress.


[14]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2928 | June 23, 2020   Page 9 of 9
