ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                Gregory F. Zoeller
Fort Wayne, Indiana                                   Attorney General of Indiana

                                                      Cynthia L. Ploughe
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                                                                                    Oct 21 2014, 12:29 pm
                                            In the
                        Indiana Supreme Court
                                     No. 02S05-1404-CR-246

JONATHAN D. CARPENTER,
                                                              Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                              Appellee (Plaintiff below).


                Appeal from the Allen Superior Court, No. 02D04-1207-FD-1008
                            The Honorable Wendy W. Davis, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 02A05-1304-CR-207



                                        October 21, 2014

Massa, Justice.


       Jonathan Carpenter appeals the admission of evidence recovered from his home after
officers entered it without a warrant in pursuit of an aggressive and bloody dog. We are asked to
decide whether that entry was reasonable. Because we find it was not, we hold that the search
violated Article 1, Section 11 of our Indiana Constitution and thus we reverse the trial court.
                                 Facts and Procedural History


       On a summer afternoon, police responded to a report of dogs fighting in Carpenter’s
backyard. Officer Matthew Wilson of the Fort Wayne Police Department was the first to arrive
on the scene. Neighbors told him that Carpenter was not home and gave him Carpenter’s cell
phone number. From outside the fenced yard, Officer Wilson observed three bloody pit bulls
running to and from an area underneath a deck where a wounded fourth dog had retreated. Officer
Tina Blackburn arrived next, followed by Sergeant Derrick Westfield. They also saw the dogs
running in and out of the home through an open sliding glass door.


       When Fort Wayne Animal Care and Control Officer Bryan Miller arrived, he decided to
enter the yard to corral the dogs despite Sergeant Westfield’s reservations. As the gate was locked,
Miller jumped over the three-foot fence to remove the dogs from the yard and secure them in his
vehicle. Miller caught three of the dogs, including the most severely injured one hiding under the
deck, but the fourth dog went into the house and would not come out. At that point, Miller asked
Sergeant Westfield to enter the house with him to retrieve the fourth dog and ensure no one was
injured.


       The officers knocked on the front door, but no one answered. Sergeant Westfield then
announced their presence at the open sliding door in the back and asked if anyone was inside, but
no one responded. They entered the home, and once inside, Miller and Sergeant Westfield noticed
two doors with ventilation ducts protruding out of them and a strong light emanating from behind
them. Sergeant Westfield opened the door to one of the rooms and found marijuana plants inside.
Miller eventually located the fourth dog in an upstairs bedroom and removed it. They did not find
any other dogs or people in the home.


       Based on the officers’ observations, members of the Vice and Narcotics Unit obtained and
executed a search warrant for Carpenter’s home, seizing the marijuana and other controlled
substances. During the search, neighbors advised the officers that Carpenter worked at the gas
station just down the street. Carpenter returned home, and the officers arrested him.


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        The State charged Carpenter with five Class D felonies: maintaining a common nuisance,
possession of more than thirty grams of marijuana, and three counts of possession of a controlled
substance.1 It also charged him with one Class A misdemeanor: possession of paraphernalia.
Carpenter moved to suppress the evidence found in his home, arguing the search violated his rights
under both the Fourth Amendment to the Federal Constitution and Article 1, Section 11 of our
Indiana Constitution. After a hearing, the trial court denied Carpenter’s motion. During his bench
trial, Carpenter objected to the admission of the evidence, but the trial court overruled that
objection and admitted it. The court found Carpenter guilty of all charges.


        Carpenter appealed his conviction, arguing the trial court abused its discretion by admitting
the challenged evidence and without it, his conviction lacked sufficient evidentiary support. The
Court of Appeals disagreed and affirmed the trial court, concluding exigent circumstances justified
the officers’ warrantless entry into Carpenter’s home. Carpenter v. State, 3 N.E.3d 1068, 1071–
73 (Ind. Ct. App. 2014).


        We granted transfer, thereby vacating the opinion below. Carpenter v. State, 6 N.E.3d 950
(Ind. 2014) (table); Ind. Appellate Rule 58(A).




                                          Standard of Review


        Although Carpenter frames his appeal as a challenge to the trial court’s denial of his pretrial
suppression motion, he did not seek interlocutory review of that decision. Thus, we consider his
appeal as what it is: a request to review the court’s decision to admit the evidence at trial.
Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014) (citing Clark v. State, 994 N.E.2d 252, 259 (Ind.




1
 Before trial, the State moved to dismiss one of the counts of possession of a controlled substance, Count V,
and the trial court granted that motion.



                                                     3
2013) (“Direct review of the denial of a motion to suppress is only proper when the defendant files
an interlocutory appeal.”)).


        In ruling on admissibility following the denial of a motion to suppress, the trial court
considers the foundational evidence presented at trial. Id. at 40 n.1. It also considers the evidence
from the suppression hearing that is favorable to the defendant only to the extent it is
uncontradicted at trial. Id. Because the trial court is best able to weigh the evidence and assess
witness credibility, we review its rulings on admissibility for abuse of discretion and reverse only
if a ruling is “clearly against the logic and effect of the facts and circumstances and the error affects
a party’s substantial rights.” Clark, 994 N.E.2d at 260. But the ultimate determination of the
constitutionality of a search or seizure is a question of law that we consider de novo. McIlquham
v. State, 10 N.E.3d 506, 511 (Ind. 2014).




  The Trial Court Erred by Admitting the Evidence Recovered from Carpenter’s Home.


        Carpenter argues the officers’ entry into his home was unreasonable and therefore violated
his rights under Article 1, Section 11 of our Indiana Constitution. He contends the warrant to
search his home was based upon illegally obtained information, and the trial court should have
excluded the evidence obtained in that search. We agree.

                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.

Ind. Const. art. 1, § 11. Although Indiana’s Section 11 and the Federal Fourth Amendment are
textually identical, they are analytically distinct. Austin v. State, 997 N.E.2d 1027, 1034 (Ind.
2013). The Fourth Amendment analysis turns on whether the subject has a “reasonable expectation
of privacy,” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring), while the
Section 11 analysis turns on whether the police conduct was reasonable under the totality of the



                                                   4
circumstances. State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002). The State bears the burden
to show the intrusion was reasonable. Id. When we evaluate the reasonableness of the officers’
actions, we consider: “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.” Litchfield v. State, 824 N.E.2d
356, 361 (Ind. 2005).


       Here, the State concedes the officers’ entry was not based upon any concern, suspicion, or
knowledge that anything illegal was going on inside the home. State’s Br. at 12 (“To be sure,
when the officers entered the curtilage and the house, they were not concerned about any
‘violation.’”). Instead, they entered to secure the dog and determine if any person needed help.
Id. at 13 (“The police needed to determine the source of the blood on the animals and, more
importantly, to determine if there were humans inside the house in need of medical assistance.”).
The first factor thus weighs against the legality of the search.


       Next, we turn to the degree of intrusion, which we consider from Carpenter’s point of view.
See Duran v. State, 930 N.E.2d 10, 19 (Ind. 2010) (“The degree of intrusion is viewed from the
point of view of the occupants or owners of the premises searched.”). “Houses and premises of
citizens receive the highest protection.” Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). For
this reason, warrantless searches of a home are presumptively unreasonable. State v. Straub, 749
N.E.2d 593, 597 (Ind. Ct. App. 2001). Under this standard, the officers’ entry into Carpenter’s
house was highly intrusive. The State argues the intrusion was mitigated because Carpenter’s
sliding door was open. On these facts, however, the open door is not enough to overcome the high
degree of intrusion; the door may have been open so the dogs could travel in and out of the house
on a hot day, and the fence and padlocked gate served to secure the property against all other
entrants.


       Finally, we balance the needs of law enforcement. Police sometimes act not to further an
investigation of wrongdoing but rather to prevent imminent harm or to provide emergency
assistance. We have said before that protection of the public is a legitimate and important law


                                                  5
enforcement function. Holder v. State, 847 N.E.2d 930, 941 (Ind. 2006). “It is because of concerns
among citizens about safety, security, and protection that some intrusions upon privacy are
tolerated, so long as they are reasonably aimed toward those concerns.” Id. at 940. Section 11
thus allows warrantless entry into a home when an officer has objectively reasonable grounds to
believe immediate aid is needed inside. VanWinkle v. State, 764 N.E.2d 258, 266–67 (Ind. Ct.
App. 2002), trans. denied, 774 N.E.2d 516 (Ind. 2002). We previously have found such objectively
reasonable grounds when police know a person is in a dangerous location. In Holder, the defendant
appealed the denial of his motion to suppress evidence of methamphetamine production. Holder,
847 N.E.2d at 933. Officers had knocked on Holder’s door because they smelled ether, a chemical
used to make methamphetamine, escaping from his home. Id. at 934. Holder opened the door,
“resulting in a rush of ether fumes,” and told the officers his infant granddaughter and two other
people were inside. Id. at 934, 939. Knowing ether to be highly flammable and explosive, the
officers determined there was a “risk of immediate danger to a young child in the volatile
atmosphere of the home” and decided to enter. Id. at 939. We found that entry to be reasonable
because the evidence of the illegal drug and the need to protect the people inside outweighed the
nature of the intrusion into the home. Id. at 941; see also VanWinkle, 764 N.E.2d at 266 (finding,
where an officer knew of explosive chemicals in an occupied home, he reasonably concluded there
was an immediate need to enter).


       Nevertheless, although the police unquestionably have an interest in protecting the public
from risk of harm from a violent dog, this interest does not confer blanket authority to enter private
homes under all circumstances. Unlike Holder and VanWinkle, in which the officers knew there
were people in dangerous situations, the officers in this case had no such knowledge. In fact, the
objective evidence suggested there was no one home; no one answered the door or responded to
the officers’ announcements, and a neighbor told the officers the homeowner was at work. Any
threat of danger to the outside public was slight; the dog was confined in a fenced yard secured by
a locked gate, and the officers could have further prevented the dog’s escape by closing the sliding
door. The dogs’ aggressive behavior and bloodied appearance simply were not enough to give
rise to a reasonable belief that a person was in danger of imminent harm or in need of immediate
assistance. Moreover, the officers did not need to enter to address the situation. They had


                                                  6
Carpenter’s phone number, and calling him or his employer to ensure that no one was in the
residence would not have been overly burdensome. See Trotter v. State, 933 N.E.2d 572, 581 (Ind.
Ct. App. 2010) (finding law enforcement needs to be low, especially where “the officers made no
effort to contact [the defendant] by any means other than direct intrusion into the dwelling”).


       Taken together, these factors lead us to conclude the officers’ entry into Carpenter’s home
was unreasonable and therefore impermissible under Section 11. Because the warrant was based
on the officers’ observations made during their illegal presence inside Carpenter’s home, the
admission of evidence recovered pursuant to that warrant was an abuse of discretion. And the
State offered no other evidence against Carpenter. Accordingly, we must reverse his convictions.


       Our opinion today does not mean that an animal’s condition or behavior could never give
rise to reasonable grounds upon which a police officer could enter a residence without a warrant.
All we hold is that on these facts, the trial court erred in concluding entry was reasonable without
any objective evidence that a person required immediate assistance. Because we have resolved
this issue under our Indiana Constitution, we need not consider Carpenter’s claim that the
admission of the evidence found in his home violated his rights under the Fourth Amendment to
the Federal Constitution.




                                            Conclusion


       For the reasons set forth in this opinion, we reverse the trial court.


Rush, C.J., and Dickson, Rucker, and David, JJ., concur.




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