FOR PUBLICATION                                                         Mar 12 2014, 9:58 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

GLEN E. KOCH II                               GREGORY F. ZOELLER
Boren, Oliver & Coffey, LLP                   Attorney General of Indiana
Martinsville, Indiana
                                              BRIAN REITZ
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

KIMBERLY D. BLANKENSHIP,                      )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 55A05-1307-CR-342
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MORGAN SUPERIOR COURT
                      The Honorable Christopher L. Burnham, Judge
                           Cause No. 55D02-1112-FD-1510



                                    March 12, 2014


                              OPINION - FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE1

        Kimberly D. Blankenship appeals her convictions for unlawful possession of a

syringe, as a Class D felony, and maintaining a common nuisance, a Class D felony.

Blankenship raises a single issue for our review, which we restate as whether the trial

court abused its discretion when it admitted into evidence contraband found in

Blankenship’s hotel room that the police seized pursuant to a search warrant. We hold

that the officers’ reliance on the search warrant was objectively reasonable under Article

1, Section 11 of the Indiana Constitution and, as such, any defect in probable cause

underlying the warrant does not render the evidence inadmissible under the exclusionary

rule. Thus, we affirm the trial court’s admission of the evidence.

                          FACTS AND PROCEDURAL HISTORY

        In 2011, employees of the Holiday Inn Express in Martinsville began finding drug

paraphernalia in the hotel’s rooms. Concerned that the hotel was “having a lot of

problems with drug use,” Donna Johns, a front desk manager at the hotel, requested the

Martinsville Police Department to bring canine units to the hotel to conduct “free air

sniffs in the common areas and hallways.” Transcript at 56.

        On December 1, 2011, at Johns’ request Martinsville Police Department Officer

Blake Long went to the hotel with his canine, Dasko. Dasko is trained to detect narcotics

and to alert his handler when he has detected narcotics by sitting down.2 Officer Long


        1
          Blankenship has not included in her brief a copy of the order from which she appeals, contrary
to Indiana Appellate Rule 46(A)(10).
        2
           Blankenship points out that Dasko “is not trained to determine whether or not a person has a
prescription.” Appellant’s Br. at 4.


                                                   2
and Dasko walked the main entrance area and the first-floor and third-floor hallways,

areas that were randomly selected by Officer Long. On the third floor, Dasko alerted

Officer Long to the presence of narcotics in room 328. Accordingly, Officer Long

knocked on the door to that room, and Blankenship answered. Officer Long explained

the situation and requested permission to enter the room, which Blankenship denied.

Officer Long observed that Blankenship appeared nervous and that she had an empty gun

holster in the room.

       From a mirror, Officer Long and Officer Lachelle Waskom also observed another

woman, Courtney Malone, asleep on a bed inside the room. Officer Long instructed

Blankenship to wake Malone. Blankenship went over to Malone and attempted to wake

her by speaking to her, but that was unsuccessful. Blankenship then started to shake

Malone, but that too was unsuccessful. Blankenship then yelled at Malone, but, again,

Malone did not stir. The officers “were afraid that there may be some type of medical

problem.” Id. at 62. Officer Waskom entered the room and approached Malone while

Officer Long stayed in the hallway with Blankenship. Officer Waskom “shook [Malone]

until she woke up” and then brought Malone out to the hallway. Id. The officers patted

Malone down for their safety and did not find anything of note. Malone declined medical

treatment.

       The officers applied for a search warrant.3 As Officer Long explained:




       3
          Despite the guidance of Indiana Appellate Rule 50(B)(1), Blankenship has not included the
search warrant in her Appendix on appeal.


                                                3
      [After other officers secured the scene] Officer Waskom and myself then
      proceeded to the Morgan County Courthouse to meet with Deputy
      Prosecutor Deiwert . . . .

             Officer Waskom and myself met with Deputy Prosecutor Deiwert,
      and then made contact with Judge Williams in reference to the search
      warrant. Officer Waskom, Deputy Prosecutor Deiwert and myself then
      proceeded to Judge Williams’ residence. At about 0030 hours on 12/02/11
      Officer Waskom and myself gave oral testimony to Judge Williams, and a
      search warrant was issued for Room #328 at the Holiday Inn Express . . . as
      well as for the persons of Kimberly Blankenship and Courtney Malone.

Appellant’s App. at 16.           Upon executing the search warrant, the officers seized

methamphetamine, marijuana, a digital scale, “[f]ive multi-colored plastic cups

containing different colored residue,” two hypodermic needles, and “a clear glass

smoking device.” Id.

      On December 2, the State charged                        Blankenship with possession of

methamphetamine, as a Class D felony; unlawful possession of a syringe, as a Class D

felony; maintaining a common nuisance, a Class D felony; possession of marijuana, as a

Class A misdemeanor; and possession of paraphernalia, as a Class A misdemeanor.4

Blankenship filed a motion to suppress the evidence against her, arguing that Dasko’s

“free air sniff” from the hotel’s hallway violated Blankenship’s rights under Article 1,

Section 11 of the Indiana Constitution. The trial court denied Blankenship’s motion to

suppress after a hearing. The court then tried Blankenship in absentia and overruled

Blankenship’s counsel’s objection to the State’s evidence, which was based on the same

grounds as her motion to suppress. The court found Blankenship guilty of unlawful

possession of a syringe, as a Class D felony; maintaining a common nuisance, a Class D

      4
          The charging information does not specify the level of the offenses alleged.


                                                    4
felony; and possession of paraphernalia, as a Class D felony. The court merged its

judgment on possession of paraphernalia with its judgment on maintaining a common

nuisance and sentenced Blankenship to an aggregate term of four years. This appeal

ensued.

                                  DISCUSSION AND DECISION

       On appeal, Blankenship argues that the trial court abused its discretion when it

admitted into evidence the items seized from her hotel room. Our standard of review of a

trial court’s admission or exclusion of evidence is an abuse of discretion. Speybroeck v.

State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court abuses its discretion only

if its decision is clearly against the logic and effect of the facts and circumstances before

the court. Id.

       In particular, Blankenship asserts that Dasko’s sniff-search of the hotel’s hallways

violated Blankenship’s rights under Article 1, Section 11 of the Indiana Constitution.5 As

our Supreme Court has stated:

       The legality of a governmental search under the Indiana Constitution turns
       on an evaluation of the reasonableness of the police conduct under the
       totality of the circumstances. . . .

                                                   ***

              [A]lthough . . . there may well be other relevant considerations under
       the circumstances, we have explained reasonableness of a search or seizure
       as turning 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.


       5
           Blankenship does not suggest that her rights under the federal constitution were violated.


                                                     5
Litchfield v. State, 824 N.E.2d 356, 359, 361 (Ind. 2005).

       We review the determination of reasonable suspicion and probable cause de novo.

Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005). Moreover, under the exclusionary

rule, evidence obtained pursuant to an illegal search is inadmissible at trial. Newby v.

State, 701 N.E.2d 593, 602 (Ind. Ct. App. 1998). “[T]he exclusionary rule is designed to

deter police misconduct,” Spillers v. State, 847 N.E.2d 949, 957 (Ind. 2006) (quotations

omitted), and “[t]o encourage compliance” with constitutional standards for searches and

seizures, Shotts v. State, 925 N.E.2d 719, 723 (Ind. 2010).

       However, the police in the instant case did not engage in a warrantless search of

Blankenship’s hotel room but, rather, acted pursuant to a search warrant. Thus, even if

Blankenship were correct in her theory that Dasko’s sniff-search of the hotel hallway

violated her rights under Article 1, Section 11, we will affirm the trial court’s admission

of the evidence if the officers acted in good faith when they executed the search warrant

for her hotel room. As our Supreme Court has explained:

       Even if the [the search] warrant was defective, suppression of the [seized
       evidence] . . . is not an automatic consequence. Suppression of evidence
       under controlling Fourth Amendment precedent turns on the culpability of
       the police and the potential of exclusion to deter wrongful police conduct.
       Specifically, invalidity of a warrant does not necessarily require exclusion
       of evidence seized under its authority. Even if a warrant is invalid for lack
       of probable cause, the exclusionary rule does not apply if the police acted in
       objectively reasonable reliance on the subsequently invalidated search
       warrant. Evidence should be suppressed only if it can be said that the law
       enforcement officer had knowledge, or may properly be charged with
       knowledge, that the search was unconstitutional under the Fourth
       Amendment. Put differently, the high cost associated with suppression is
       appropriate only where police acts are sufficiently culpable and suppression
       can meaningfully deter those acts. The good-faith inquiry is confined to the
       objectively ascertainable question whether a reasonably well trained officer


                                             6
        would have known that the search was illegal in light of all of the
        circumstances.

Id. at 724 (citations, quotations, and internal alterations omitted). Our Supreme Court has

recognized that “the federal good-faith exception . . . has been held applicable to the

prohibition of unreasonable search and seizure found in art. 1, § 11 of the Indiana

Constitution.” Hopkins v. State, 582 N.E.2d 345, 351 (Ind. 1991).

        The good faith exception is also codified6 in Indiana as follows:

        (a) In a prosecution for a crime or a proceeding to enforce an ordinance or a
        statute defining an infraction, the court may not grant a motion to exclude
        evidence on the grounds that the search or seizure by which the evidence
        was obtained was unlawful if the evidence was obtained by a law
        enforcement officer in good faith.

        (b) For purposes of this section, evidence is obtained by a law enforcement
        officer in good faith if:

                (1) it is obtained pursuant to:

                (A) a search warrant that was properly issued upon a determination
                of probable cause by a neutral and detached magistrate, that is free
                from obvious defects other than nondeliberate errors made in its
                preparation, and that was reasonably believed by the law
                enforcement officer to be valid; or
                (B) a state statute, judicial precedent, or court rule that is later
                declared unconstitutional or otherwise invalidated; and

                (2) the law enforcement officer, at the time he obtains the evidence,
                has satisfied applicable minimum basic training requirements
                established by rules adopted by the law enforcement training board
                under I.C. 5-2-1-9 . . . .

Ind. Code § 35-37-4-5. Thus:


        6
          Indiana courts utilize this statutory template when the good faith exception is an issue but, at
the end of the day, whether there has been an Article 1, Section 11 violation remains a judicial
determination grounded in the Indiana Constitution itself.


                                                    7
       whether or not [an officer] acted in good faith in executing the warrant
       depends upon (1) whether a neutral and detached magistrate made the
       determination of probable cause and issued the warrant; (2) whether the
       warrant was free of obvious defects other than non-deliberate errors; and
       (3) whether [the officer] reasonably believed the warrant was still valid
       when he executed it.

Caudle v. State, 749 N.E.2d 616, 621-22 (Ind. Ct. App. 2001) (footnotes and citation

omitted), aff’d on reh’g, 754 N.E.2d 33, trans. denied.

       Here, again, Blankenship argues that Dasko’s sniff-search of the hotel hallway

violated her rights under Article 1, Section 11 because (1) the search was done randomly

and without particularized suspicion; (2) the degree of intrusion at the threshold of her

hotel room, while “slight, . . . is outweighed by the arbitrariness of the search,”

Appellant’s Br. at 9; and (3) “there was no articulation at the trial court level for why

police need to conduct random free-air sniffs of hotel rooms any more than they would

need to do so for homes,” id. at 10. As support for her argument that Dasko’s search

violated her rights under the Indiana Constitution, Blankenship substantially relies on this

court’s opinion in Hoop v. State, 909 N.E.2d 463 (Ind. Ct. App. 2009), trans. denied. In

Hoop, we stated that, under Article 1, Section 11, police must have reasonable suspicion

of illegal activity before the police may conduct a canine sniff-search at the front door of

a defendant’s private residence. Id. at 470.

       But we then held that, on the facts of that case, the officers had acted in good faith

reliance on a search warrant and, as such, application of the exclusionary rule was not

appropriate. Id. at 471. Specifically, we stated as follows:

       There has been no allegation that the warrant was based on false
       information, the warrant was facially deficient, or the magistrate was not


                                               8
      detached and neutral. Nor do we think the affidavit was “so lacking in
      indicia of probable cause as to render an official belief in the existence of
      the warrant unreasonable.” The dog sniff alone would provide probable
      cause for a warrant, and the officers had no reason to think the sniff was
      unlawful. The sniff was permissible under the great weight of authority
      under the Fourth Amendment. No case has squarely addressed the issue
      under Art. 1, § 11. Although we find support for a reasonable suspicion
      requirement in Litchfield, neither Litchfield nor previous opinions
      assessing the reasonableness of dog sniffs under Art. 1, § 11 clearly
      foreshadow the result in this case. Therefore, we conclude the officers
      reasonably relied on the magistrate’s conclusion that the dog sniff was in
      accordance with the law. See State v. Spillers, 847 N.E.2d 949, 958 (Ind.
      2006) (after careful examination of existing case law, Court determined
      informant’s statements were not against penal interest, but that officers
      relied on warrant in good faith; officers need only a reasonable knowledge
      of the law and are not required to do extensive legal research before
      obtaining a warrant).

Id. (emphasis added; footnote and some citations omitted).

      In light of our holding in Hoop that the officers acted in good faith, Blankenship

argues as follows:

      The only facts underlying the warrant were those obtained through the
      random free-air sniff. Therefore the warrant is tainted and invalid.
             The good faith exception . . . does not make this search lawful. . . .
      The good faith exception does not apply if, inter alia, the affidavit or sworn
      testimony upon which probable cause rests is so lacking in indicia of
      probable cause as to render an official belief in the existence of the warrant
      unreasonable. Here, Hoop v. State directly foreshadowed the finding that a
      random free-air sniff of a dwelling requires reasonable suspicion, and,
      therefore, the good faith exception does not apply.

Appellant’s Br. at 10-11 (citations omitted). We cannot agree with Blankenship.

      Assuming only for the sake of argument that the officers needed reasonable

suspicion to walk Dasko down a common hallway in a hotel, the officers here acted in

good faith when they relied on the search warrant to search Blankenship’s hotel room.

As we stated in Hoop, the officers reasonably believed that Dasko’s signal would provide


                                            9
probable cause for a warrant. See 909 N.E.2d at 471. The warrant here was issued by a

neutral and detached magistrate. See Caudle, 749 N.E.2d at 622. And there is no

argument or suggestion that the warrant contained obvious defects or deliberate errors or

that the warrant was no longer valid when it was executed. See id. Further, Hoop did not

“directly foreshadow” the facts of this case, as Blankenship contends. See Appellant’s

Br. at 11. Hoop involved a sniff-search of the front door of a private residence, not the

sniff-search of a common area hallway at a hotel where the officers had been explicitly

invited to search by the hotel’s management. Neither did Hoop involve the officers’

direct observation of a woman in Malone’s apparent condition.

      In sum, we need not reach Blankenship’s argument that Article 1, Section 11

prohibited the officers from walking canine units in the common area of the hotel, at the

hotel management’s request, absent reasonable suspicion.         The officers searched

Blankenship’s hotel room while objectively and reasonably relying on a search warrant.

There is no evidence that the officers had knowledge, or should be charged with

knowledge, that the sniff-search in the hallway may have been unconstitutional.

Accordingly, there is no “wrongful police conduct” to deter, and suppression of the

evidence under the exclusionary rule would not be appropriate in light of the facts and

circumstances of this case. See Shotts, 925 N.E.2d at 724. As such, we affirm the trial

court’s admission of the evidence.

      Affirmed.

CRONE, J., concurs.

BAKER, J., concurs in result with separate opinion.


                                           10
                                 IN THE
                       COURT OF APPEALS OF INDIANA

KIMBERLY D. BLANKENSHIP,                                 )
                                                         )
       Appellant-Defendant,                              )
                                                         )
                 vs.                                     )       No. 55A05-1307-CR-342
                                                         )
STATE OF INDIANA,                                        )
                                                         )
                                                         )
       Appellee-Plaintiff.                               )


                       APPEAL FROM THE MORGAN SUPERIOR COURT
                          The Honorable Christopher L. Burnham, Judge
                               Cause No. 55D02-1112-FD-1510



BAKER, Judge, concurring in result.

       I agree that the trial court properly admitted the contraband seized from

Blankenship’s hotel room into evidence. However, I part ways with the majority’s need

to discuss the notion that the officers’ search was justified because they “acted in good

faith”7 when executing the search warrant and searching Blankenship’s hotel room. Slip

op. at 6-10.

       As the majority points out, Dasko sniff-searched a common area hallway at a hotel

where the police officers had been explicitly invited to search by the hotel’s manager. Id.

       7
           As the majority observes, the good faith exception is codified in Indiana Code section 35-37-4-
5.


                                                    11
at 10. In other words there was no arbitrary or random canine sniff at the hotel absent the

business’ consent. Indeed, the circumstances here differ markedly from those in Hoop v.

State, 909 N.E.2d 463 (Ind. Ct. App. 2009), where there a canine sniff-search was

conducted at the front door of a private residence. There was no direct observation by the

police in Hoop of a woman in Malone’s condition, and there was no sighting of a gun

holster. That said, I believe that the evidence in this case establishes that Dasko’s sniff-

sweep of the common areas at the hotel, at the hotel manager’s request, was reasonable,

and the good faith reliance discussion set forth in Hoop does not control the outcome

here.

        I would also note that this court has previously approved dog sniffs of vehicles

lawfully stopped for traffic violations without reasonable suspicion. State v. Gibson, 886

N.E.2d 639, 643 (Ind. Ct. App. 2008). Dog sniffs have also been approved for packages

in the mail when the delivery of the item was not substantially delayed. Rios v. State,

762 N.E.2d 153, 160-61 (Ind. Ct. App. 2002).

        In my view, when applying the provisions of Article 1, Section 11 of the Indiana

Constitution, there was a strong suspicion in this case of criminal activity occurring in the

hotel when the manager reported to the police that she found evidence that the patrons

were using drugs in the rooms. The degree of intrusion, if any, was low, inasmuch as the

dog sniff was conducted late in the evening when it was presumed that the patrons were

sleeping. In fact, it was noted at the suppression hearing that “all of the other guests who

were there that night didn’t even know that it had happened. That’s how little intrusion




                                             12
there in fact was.” Tr. p. 40. Blankenship even concedes that “the degree of intrusion

was slight.” Appellant’s Br. p. 9.

       Additionally, the extent of the police officers’ need to function as community

caretakers at the behest of concerned property owners was high.            Preventing law

enforcement personnel from coming to the aid of a property owner who fears that his or

her property is being unwillingly turned into a drug haven would result in the type of

unreasonableness that the Fourth Amendment attempts to avoid.

       For these reasons, I do not believe that the canine “free air sniff” from the hotel’s

hallway violated Blankenship’s rights under Article 1, Section 11 of the Indiana

Constitution. Thus, the search warrant was validly issued, the police officers conducted a

proper search of the hotel room, and the evidence was properly admitted at trial. As a

result, I would affirm Blankenship’s convictions.




                                            13
