                                                                   FILED
                                                              Feb 28 2017, 5:37 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                         Curtis T. Hill, Jr.
Montgomery Law Office                                      Attorney General of Indiana
Lafayette, Indiana
                                                           George P. Sherman
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ricky Johnson,                                             February 28, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A04-1601-CR-165
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           79D02-1412-F4-5



Brown, Judge.




Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017              Page 1 of 18
[1]   Ricky Johnson appeals his conviction for possession of a firearm by a serious

      violent felon as a level 4 felony. Johnson raises two issues which we

      consolidate and restate as whether the trial court abused its discretion by

      admitting evidence obtained pursuant to a protective sweep. We reverse.


                                       Facts and Procedural History

[2]   On December 7, 2014, Lafayette City Police Officer Lonnie Charles Wilson

      was dispatched at 5:10 a.m. to 104 Cochise Trail in Tippecanoe County

      regarding a female, Dmysia Joe, saying someone was trying to kill her with a

      handgun. Joe called the police again and informed them that she had left and

      gone to a Burger King restaurant. Officer Wilson then proceeded to the

      restaurant where he met Joe, a female “about 5 foot 5’2”, about 130-140

      pounds.” Transcript at 108. Joe was very upset and hysterical. She told

      Officer Wilson that her then-boyfriend, Johnson, had threatened her, was

      intoxicated, pointed a weapon at her head, cocked the weapon, and said that he

      would kill her. Officer Wilson transported Joe to the Lafayette Police

      headquarters where she gave a statement.


[3]   Joe told Officer Wilson that she left work around 10:30 p.m. and went to her

      apartment to find Johnson on the bed drinking. She said Johnson stated that he

      was going to go on a run with his friend, he left with the friend, she called

      Johnson repeatedly, and that “the time comes to 3:30” and Johnson finally

      answered and said he was leaving. State’s Exhibit 1 at 6:15. Johnson returned

      to the apartment intoxicated. She stated that Johnson said: “I’m going to go

      kill them. They arrested my brother.” Id. at 6:17. She also said that Johnson
      Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 2 of 18
      told her to “go get my gun,” and that she gave Johnson his revolver. Id. at 6:18.

      She said that Johnson pointed the gun at her and said: “I’m going to kill you

      bitch.” Id. at 6:20. She also told the police that Johnson took her vehicle, he

      was going to hang out with a friend, he typically hangs out with his brothers,

      one of his brothers was in jail, and that he hangs out with his other brother,

      Deshawn Johnson. Officer Wilson was familiar with the lengthy criminal

      history of Deshawn Johnson, and “in law enforcement’s view he’s a gang

      member of BTC.” Transcript at 29. Joe said that Johnson had made threats to

      other people and that he wanted to make certain individuals pay for “putting

      his brother in jail.” Id. at 30. Joe’s recorded statement to the police concluded

      at 6:24 a.m.


[4]   While Joe was still at police headquarters, Johnson called her cell phone, told

      her he was home, and demanded to know her location and that she return to

      the apartment. Officer Wilson told Joe and her mother to go to the Burger

      King, and he went to the apartment. Other officers went to the residence and

      heard Johnson yelling and “carrying on through the window.” Id. at 12. They

      also discovered Joe’s vehicle in the parking lot. The officers were about to set

      up a tactical blanket 1 based on their understanding that a person was inside and

      may be armed with a handgun, when Johnson exited the apartment. He had a

      phone to his ear with one hand, locked the door with a set of keys in his other




      1
       Lafayette Police Officer Stephen Bittles testified that a tactical blanket is “like a bullet proof blanket,
      basically a moveable bullet proof wall.” Transcript at 147.

      Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017                            Page 3 of 18
      hand, began walking toward the police, and then turned to go back into the

      apartment. He “started to put the keys into the lock to re-open the door” when

      police stopped him. Id. at 14. Johnson stood there for a moment and did not

      cooperate with police commands, but then he did cooperate without resistance,

      and officers apprehended him in the common hallway area of the apartment

      building at approximately 7:15 a.m.


[5]   Officer Wilson “made [his] announcements with [his] K-9 asking anybody to

      come out,” and “nobody made any noises inside.” Id. at 27. While Johnson

      was taken to a squad car, the police entered the apartment to conduct a

      protective sweep observed broken glass on the floor, a broken picture frame in

      the kitchen, and ultimately a handgun on the bed in the back bedroom. The

      police did not locate anyone inside the apartment. Johnson stated that he

      wanted to be released, and Lafayette Police Officer Stephen Bittles told him

      that the police had received a complaint that he took a woman’s car and

      pointed a handgun at her. The police patted Johnson down and did not

      discover any weapons. Officer Wilson contacted Joe and she came to the

      scene, and the police went through the apartment with her. Joe told Officer

      Wilson “there should be any of her – nothing – no weapons would be in her

      house that were hers or anything like that and she wanted them gone.” Id. at

      19. The police discovered a shoebox containing ammunition near the bed.


[6]   On December 8, 2014, Johnson called Joe from the jail and on December 10,

      2014, the State charged him with possession of a firearm by a serious violent



      Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 4 of 18
      felon as a level 4 felony and criminal recklessness as a level 6 felony. In

      January 2015, the State added the count of intimidation as a level 5 felony.


[7]   On November 18, 2015, Johnson filed a motion to suppress evidence alleging

      that the search violated his rights under the Fourth Amendment of the United

      States Constitution and Article 1, Section 11 of the Indiana Constitution. The

      court held a hearing on the motion the next day. Officer Wilson testified that

      Johnson turned to go back inside the apartment and: “Then with the

      information I had, him possibly having a weapon, the fear he might hurt

      somebody because he had already implicated that he was out to do so, I then

      felt that we needed to hurry up and make action to keep him from going back

      inside the building accessing anything I didn’t see on him at the time.” Id. at

      13-14. When asked why he entered the apartment, Officer Wilson answered:


              With the statement given by Dmysia that it was her apartment
              access she had told me that she had a weapon. He had said that
              he was going to retaliate for those that tried to or did put his
              brother in jail, and he threatened to kill her. And from what she
              showed me his actions taken, we then did a protective sweep of
              that apartment for any persons injured or anything that might
              have been evidence to an injury of another individual. And we
              cleared that in safety.


      Id. at 15. He testified that the police did not enter the apartment to specifically

      find the handgun. On redirect examination, when asked whether he believed

      that there were potentially other people inside that could pose a safety threat to

      him, Officer Wilson testified:



      Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 5 of 18
              I do believe from what [Joe] told me there was a definite risk of
              another individual being harmed by his actions because of what
              he had told her and she stated to me, his intents as well as how
              he demonstrated he was going to do harm to her. She also said
              that he had left earlier in the evening with that individual, and I
              didn’t know if that individual was present inside. So, with the
              information I had, I wanted to do a protective sweep for any
              person’s safety, but I don’t want to put myself in any harm’s way
              if there was a second individual that we did not know about that
              happened to be with him.


      Id. at 28. On recross-examination, Officer Wilson testified that he conducted

      the sweep to protect himself and that nobody was seen or heard. At the end of

      the hearing, the court stated there was evidence that Johnson acted erratically

      and violently, that he made threats against Joe and other people, and that there

      were articulable facts “for officers to have a concern not only for their own

      safety, but more importantly for safety of anybody that might be in the

      apartment . . . .” Id. at 37. The court denied the motion to suppress as to the

      firearm, but granted the motion as to the box of ammunition.


[8]   The prosecutor moved to dismiss the charges of criminal recklessness and

      intimidation, and the court granted the motion. At trial, the parties stipulated

      that Johnson was a person barred from possessing a firearm. When the

      prosecutor began to elicit testimony from Officer Wilson regarding the

      protective sweep, Johnson’s counsel objected to any testimony or evidence

      regarding what was acquired in the search, and the court overruled the

      objection. The court stated that it would not allow any testimony about what

      was inside the shoebox because that exceeded the scope of the protective sweep.

      Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 6 of 18
[9]    After the State rested, Joe testified as a defense witness. She testified that she

       lived with Johnson in apartment 215, that she thought he was cheating on her,

       and that she was on medication, drinking, and “went crazy.” Id. at 180. She

       testified that she called her mother and told her that Johnson put a gun to her

       head and tried to kill her and that that statement was not correct. She stated

       that her friend, Dee, and his girlfriend, Krissy, had asked her to hold the gun

       and that she never told Johnson anything about the gun. She stated that her

       mother called the police and that she told the police that Johnson had held a

       gun to her head and tried to kill her, but that was not a correct statement. Joe

       further testified that she received a jail phone call from Johnson, that she said

       something to him about his using the gun on her, that it was not a correct

       statement, and that she made the statement because her mom was sitting right

       next to her. According to Joe’s testimony, she applied for a protective order

       against Johnson on December 9, 2014, and “said it was a domestic violence.”

       Id. at 184. She said that she wrote a letter on December 12, 2014, “to bring out

       the real truth on what really happened that night,” and that she filed a motion

       to dismiss the protective order on February 11, 2015. Id.


[10]   On cross-examination, Joe testified that she did not know Dee and Krissy’s last

       names and that the gun was in the shoebox. When asked how the gun was

       located on the bed and not in the shoebox when officers arrived, Joe answered:

       “I mean I was drunk I could have laid it on the bed; it was only me in the

       apartment.” Id. at 191. She testified that she lied under oath in a deposition a

       day earlier when she stated that the gun remained under the bed. The


       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 7 of 18
       prosecutor asked Joe: “That shoe box only contained the gun, right?” Id. at

       191. Joe answered affirmatively. Johnson’s counsel objected. During a

       sidebar, the prosecutor stated that the items in the shoebox were previously

       suppressed as evidence but the exclusionary rule did not apply to impeach a

       witness, that Joe had testified that the shoebox contained only the gun, and that

       there was a photo showing ammunition and several magazines in the shoebox,

       and the prosecutor moved to admit the photo for impeachment purposes.

       Johnson’s counsel stated: “Judge I – I don’t have case law, but I’m not going to

       argue that is [an] incorrect stance for the State. I mean if someone comes in – if

       evidence is suppressed and someone specifically – the statements are

       inconsistent I would have to review case law to see, but I think that is probably

       admissible for impeachment.” Id. at 193. Johnson’s counsel then argued that

       the photo should be suppressed because “unfair prejudice out weights the

       appropriate value.” Id. The court admitted the photo. The prosecutor showed

       Joe the photo of the shoebox, and Joe testified that the shoebox contained

       several magazines and ammunition. Joe also testified that she gave a statement

       to Officer Wilson outside the presence of her mother, that she told him Johnson

       had demanded she go retrieve the gun which he had kept in a shoebox next to

       his bed, and that she told him that Johnson pointed the gun at her and said that

       he would kill her.


[11]   The jury found Johnson guilty as charged. The court sentenced Johnson to

       nine years in the Department of Correction with one year suspended to

       probation.


       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 8 of 18
                                                     Discussion

[12]   The issue is whether the trial court abused its discretion by admitting evidence

       obtained pursuant to the protective sweep. Although Johnson originally

       challenged the admission of the evidence through a motion to suppress, he now

       challenges the admission of the evidence at trial. Thus, the issue is

       appropriately framed as whether the trial court abused its discretion by

       admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind. Ct. App.

       2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App.

       2005).


[13]   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 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). Even if the trial

       court’s decision was an abuse of discretion, we will not reverse if the admission

       constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

       1999), reh’g denied, trans. denied.



       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 9 of 18
[14]   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).


[15]   Johnson argues that the admission of evidence of the gun was improper because

       the protective sweep of the residence was unreasonable and the officers had a

       mere inchoate and unparticularized suspicion or hunch. The State asserts that

       the area searched was immediately adjoining where Johnson was arrested and

       no probable cause or reasonable suspicion was required to search. The State

       also argues that to the extent we determine that the location of the arrest

       precluded a protective sweep unless the officers had reasonable suspicion that

       someone else could be inside who could pose a safety threat, such

       circumstances were present here. The State contends that the potential danger

       to officers from a person hiding in the adjoining areas was the same whether

       Johnson was arrested in the doorway or the area immediately in front of the

       doorway, that Officer Wilson could have reasonably suspected that there could

       be another person, such as Deshawn Johnson, armed and inside the apartment




       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 10 of 18
       who could jeopardize the officers’ safety, and that a protective sweep was

       justified. 2


[16]   The Fourth Amendment to the United States Constitution provides, in

       pertinent part: “[t]he right of people to be secure in their persons, houses,

       papers, and effects, against unreasonable searches and seizures, shall not be

       violated . . . .” U.S. CONST. amend. IV. If the search is conducted without a

       warrant, the State bears the burden to show that one of the well-delineated

       exceptions to the warrant requirement applies. Osborne v. State, 63 N.E.3d 329,

       331 (Ind. 2016).


[17]   The trial court stated that there were articulable facts for officers to have a

       concern for their own safety and for the safety of a person that might be in the

       apartment. The United States Supreme Court and the Indiana Supreme Court

       have recognized a limited exception to the warrant requirement where an

       officer reasonably believes a person inside a home may have been in need of

       aid. Bryant v. State, 660 N.E.2d 290, 300-301 (Ind. 1995) (citing Warden, Md.

       Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642 (1967); Tata v. State, 486

       N.E.2d 1025 (Ind. 1986)), cert. denied, 519 U.S. 926, 117 S. Ct. 293 (1996). In




       2
        In his brief, Johnson mentions Article 1, Section 11 of the Indiana Constitution in his statement of the case
       and statement of facts and mentions the Indiana Constitution generally in his argument section. However,
       he fails to provide an independent analysis of the Indiana Constitution. Failure to make a cogent argument
       under the Indiana Constitution constitutes waiver of the issue on appeal. See Abel v. State, 773 N.E.2d 276,
       278 n.1 (Ind. 2002) (holding that because the defendant presented no authority or independent analysis
       supporting a separate standard under the state constitution, any state constitutional claim is waived). Thus,
       we focus on his claim under the United States Constitution.




       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017                      Page 11 of 18
       cases employing this exception, police possessed objective evidence that a

       violent crime had or was about to occur. Id. (citing Hayden, 387 U.S. 294, 87 S.

       Ct. 1642; Tata, 486 N.E.2d at 1028).


[18]   The United States Supreme Court defined a protective sweep as “a quick and

       limited search of premises, incident to an arrest and conducted to protect the

       safety of police officers or others. It is narrowly confined to a cursory visual

       inspection of those places in which a person might be hiding.” Maryland v. Buie,

       494 U.S. 325, 327, 110 S. Ct. 1093, 1094 (1990). As an incident to arrest

       officers may, “as a precautionary matter and without probable cause or

       reasonable suspicion, look in closets and other spaces immediately adjoining

       the place of arrest from which an attack could be immediately launched.” Id. at

       334, 110 S. Ct. at 1098. A search beyond those parameters is permissible only

       when there are “articulable facts which, taken together with the rational

       inferences from those facts, would warrant a reasonably prudent officer in

       believing that the area to be swept harbors an individual posing a danger to

       those on the arrest scene.” Id.


[19]   In Reed v. State, this Court addressed a protective sweep that occurred after

       police pulled the defendant outside the door to the residence and the officers

       and the defendant fell into the bushes. 582 N.E.2d 826, 827 (Ind. Ct. App.

       1991), reh’g denied, trans. denied, cert. denied, 506 U.S. 848, 113 S. Ct. 142 (1992).

       We observed that federal courts have upheld protective sweeps although the

       suspect was arrested outside of the premises. Id. at 828 (citing in part United

       States v. Oguns, 921 F.2d 442 (2d Cir. 1990) (protective sweep incident to an

       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 12 of 18
       arrest outside the home is permissible if reasonable belief exists that another

       person is inside and aware of arrest since that person may jeopardize the

       officer’s safety); United States v. Merritt, 882 F.2d 916 (5th Cir. 1989) (although

       defendant stepped outside of motel room when surrendering to arrest warrant,

       officers were justified in making protective sweep because they were aware

       room was registered to another person which supported a reasonable belief that

       a search was necessary for their safety), cert. denied, 496 U.S. 907, 110 S. Ct.

       2592 (1990); United States v. Akrawi, 920 F.2d 418 (6th Cir. 1990) (protective

       sweep of second floor of home was improper where no specific or articulable

       facts for officers to believe anyone else was inside posing a safety threat); United

       States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989) (“If the exigencies to

       support a protective sweep exist, whether the arrest occurred inside or outside

       the residence does not affect the reasonableness of the officer’s conduct. A

       bullet fired at an arresting officer standing outside a window is as deadly as one

       that is projected from one room to another.”), cert. denied, 498 U.S. 825, 111 S.

       Ct. 80 (1990)). We held that “a protective sweep incident to an arrest occurring

       outside the residence may be valid if the police have articulable facts which

       support a reasonable belief that other persons may be inside the residence which

       may pose safety threats.” Id.


[20]   Johnson cites Smith v. State, 565 N.E.2d 1059 (Ind. 1991), in which, following

       his arrest, Wesley Smith informed police officers that there was marijuana in

       his home and that his wife, Tammy Smith, was in the home alone with two

       children. 565 N.E.2d at 1060. The police obtained a warrant for Tammy’s

       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 13 of 18
       arrest, but did not have a search warrant. Id. The officers were permitted to

       enter through the front door by Tammy who was then advised of her rights and

       arrested. Id. The officers then conducted a “protective sweep” of the entire

       house. Id. During this exploration, the officers discovered a locked door to a

       storage room connected to the game room of the house. Id. The officers heard

       no sounds emanating from the room, nor did they smell any unusual odors. Id.

       The officers discussed the legality of entering the room without a search

       warrant. A trooper called the prosecuting attorney to discuss the necessity of

       acquiring a search warrant, and at the same time another officer inserted a

       paperclip into the doorknob to release the lock and entered the room where

       marijuana was discovered. Id. The trial court held the evidence discovered in

       plain view after the storage room door was opened admissible. Id.


[21]   On appeal, the Indiana Supreme Court addressed whether the warrantless entry

       into the locked storage room and seizure of the marijuana violated the Fourth

       and Fourteenth Amendments to the U.S. Constitution. Id. The Court observed

       that “[o]f particular relevance here is the alternative requirement under Buie

       either that the area searched was ‘immediately adjoining the place of arrest,’ or

       that there existed articulable facts warranting the arresting officers to reasonably

       believe that ‘the area to be swept harbors an individual posing a danger to those

       on the arrest scene.’” Id. at 1062. The Court observed that the officers first

       entered the living room of the home to make the arrest, then checked the

       separate kitchen and game room, and found the locked door to the storage

       room off the game room. Id. It noted that there was “no indication from the

       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 14 of 18
       record that the officers perceived any danger to their safety.” Id. The Court

       stated that there was no evidence that the storage room immediately adjoined

       the place of arrest from which an attack could be immediately launched and

       there was no specific and articulable facts demonstrating any reasonable

       suspicion of danger. Id. at 1063.


[22]   Similar to Smith, we address whether the bedroom in which the gun was

       discovered was a space immediately adjoining the place of arrest from which an

       attack could be immediately launched, or if this was a search beyond those

       parameters requiring “articulable facts which, taken together with the rational

       inferences from those facts, would warrant a reasonably prudent officer in

       believing that the area to be swept harbors an individual posing a danger to

       those on the arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098. Officer

       Wilson referred to the bedroom in which the gun was found as a “back

       bedroom.” Transcript at 113. Officer Brown testified that “[t]here’s a living

       room area beside the front door, there’s a kitchen area off to the left and then

       when you proceed back you have the bedroom off to the south east and then a

       bedroom.” Id. at 145. Officer Wilson testified that the handgun was found on

       the edge of the bed, that State’s Exhibit 2 was a photograph showing “the living

       room and kitchen and dining room off to the left as you would open the door

       and enter the apartment,” and that State’s Exhibit 3, a photograph showing the

       gun on the bed, showed “that door that you would see going into the bedroom

       from Exhibit 2, you would turn and look into the bedroom from this corner.”

       Transcript at 17-18. Based upon the record, we cannot say that the State


       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 15 of 18
       demonstrated that the back bedroom behind the locked door of the apartment

       was a space immediately adjoining the place of arrest in the hallway of the

       apartment building from which an attack could be immediately launched. 3

       Thus, we turn to whether articulable facts existed which when taken together

       with the rational inferences from those facts would warrant a reasonably

       prudent officer in believing that the area to be swept harbors an individual

       posing a danger to those on the arrest scene.


[23]   The officers arrested Johnson outside of the apartment in a common hallway

       area of the apartment building. Thus, the person who had threatened Joe was

       in custody. The door to the apartment was closed and locked at the time of the

       arrest. There is no evidence that the officers saw or heard anyone else in the

       apartment. When Officer Wilson “made [his] announcements with [his] K-9

       asking anybody to come out,” “nobody made any noises inside.” Id. at 27.

       During recross-examination, defense counsel asked Officer Wilson: “But at the

       sweep, the time of the sweep when you elected to go inside, you had no specific

       reason to believe – there was no specific indication that Deshawn or anyone

       else was in the apartment?” Id. at 31. Officer Wilson answered: “I had heard

       nobody or saw nobody.” Id. As in Smith where the subject of the arrest

       warrant was arrested and the officers subsequently heard no sounds emanating




       3
         To the extent the State cites State v. Manuel, 270 P.3d 828 (Ariz. 2011), we find that case distinguishable. In
       Manuel, the Supreme Court of Arizona found that the search of a hotel room was justified under the first Buie
       exception where, while the police were completing the arrest in the hallway outside the room, the defendant’s
       girlfriend came to the doorway, screaming hysterically, and the hotel room was immediately adjacent to the
       place where the defendant was arrested and his girlfriend was detained. 270 P.3d at 832.

       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017                        Page 16 of 18
       from the locked room, and in which the Indiana Supreme Court observed that

       there was no indication that the officers perceived any danger to their safety,

       likewise there is no indication here that the officers perceived any danger to

       their safety or to any possible victim inside the apartment.


[24]   To the extent the State argues that Reed requires that we affirm, we disagree. In

       Reed, we held that the detectives did show articulable facts to justify the

       protective sweep where: the detectives were aware that the house they

       surrounded belonged to the defendant’s girlfriend; after the detectives knocked

       on the door and announced themselves, one officer heard the toilet flush and

       several officers heard running or scuffling sounds; and as officers were

       restraining the defendant, a woman’s voice answered a detective’s inquiry as to

       whether anyone else was inside, but she did not exit the house. 582 N.E.2d at

       828. These articulable facts are not present in this case and thus we find Reed

       distinguishable.


                                                        Conclusion

[25]   We conclude that the protective sweep was improper and that the trial court

       abused its discretion by admitting the gun discovered in the apartment. 4 For the

       foregoing reasons, we reverse Johnson’s conviction.




       4
           We note that the State does not argue that the inevitable discovery or independent source exceptions apply.



       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017                       Page 17 of 18
[26]   Reversed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A04-1601-CR-165 | February 28, 2017   Page 18 of 18
