                                                                                FILED
                                                                         May 31 2017, 8:35 am

                                                                                CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                        Curtis T. Hill, Jr.
      Public Defender of Indiana                              Attorney General of Indiana

      Kristin M. Eichel                                       Eric P. Babbs
      Deputy Public Defender                                  Deputy Attorney General
      Indianapolis, Indiana                                   Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Latorrea Denise Ware,                                   May 31, 2017
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              20A03-1610-PC-2297
              v.                                              Appeal from the Elkhart Circuit
                                                              Court
      State of Indiana,                                       The Honorable Terry C.
      Appellee-Respondent.                                    Shewmaker, Judge
                                                              Trial Court Cause No.
                                                              20C01-1412-PC-46



      Najam, Judge.


                                       Statement of the Case
[1]   Latorrea Denise Ware appeals from the post-conviction court’s denial of her

      petition for post-conviction relief. Ware raises two issues for our review, but we

      need only discuss the following issue: whether the post-conviction court erred

      Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017                     Page 1 of 10
      when it concluded that Ware did not receive ineffective assistance from her trial

      counsel. We hold that, had Ware’s trial counsel moved to suppress evidence

      seized by officers who had entered her home with a valid warrant but without

      first clearly announcing their presence, that motion would not have been

      successful. Accordingly, we affirm the post-conviction court’s judgment that

      Ware did not receive ineffective assistance from her trial counsel.


                                 Facts and Procedural History
[2]   The facts underlying Ware’s convictions were stated by this court on direct

      appeal:


              In February 2012, a confidential source participated in two
              controlled buys of cocaine from Ware. The police used
              information gathered during the controlled buys to obtain a
              search warrant for Ware’s apartment in Elkhart. On February
              24, 2012, Detective Timothy Freel of the Elkhart Police
              Department led several officers, including some uniformed
              officers, in the execution of the search warrant. Detective Freel
              was wearing plain clothes and a black tactical vest when he
              knocked on the door to Ware’s apartment. When someone
              asked who was at the door, Detective Freel responded that he
              was from maintenance and was there to change a furnace filter.
              Ware opened the door and could see Detective Freel wearing his
              vest and tried to shut the door. Detective Freel put his foot in the
              doorway, tried to identify himself as a police officer, drew his
              weapon, and ordered the occupants of the apartment to the
              ground. The police found cocaine and money used in the
              controlled buys in the apartment.


              The State charged Ware with Class A felony dealing in cocaine,
              two counts of Class B felony dealing in cocaine, and Class D

      Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017    Page 2 of 10
              felony maintaining a common nuisance. A jury found Ware
              guilty as charged. . . .


      Ware v. State, No. 20A03-1401-CR-18, 2014 WL 4116469, at *1 (Ind. Ct. App.

      Aug. 21, 2014) (footnote omitted) (“Ware I”).


[3]   In her direct appeal, Ware argued that the trial court committed fundamental

      error when it admitted the evidence seized during the execution of the search

      warrant. We rejected Ware’s argument as follows:


              Ware contends that Detective Freel’s initial false identification of
              himself as a maintenance man and the lack of identifying police
              uniform when she first opened the door violated basic principles
              of due process. We do not agree. There was testimony at trial
              that the purpose of police officers falsely identifying themselves
              when they execute a search warrant is to “safely get people to the
              door” and to avoid the destruction of evidence and people fleeing
              from windows. Tr. p. 194. This is consistent with Detective
              Freel’s testimony that safety was the primary concern when they
              entered the apartment. He also testified that it is standard
              operating procedure to have weapons drawn and to order the
              occupants to the ground because many times drug dealers have
              weapons and guns. This procedure allows police officers to have
              total control of the situation and “make everything safe[.]” Id. at
              128.


              Detective Freel also testified that, when Ware opened the door,
              she could see he was wearing a black tactical bullet proof vest
              and he was trying to identify himself as a police officer. He also
              testified that plain clothes officers wear either a badge or a vest
              that says police. Further, there was testimony that the search
              was conducted with uniformed officers near the door to confirm
              the police presence.


      Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017       Page 3 of 10
               Under these circumstances, we cannot conclude that the manner
               in which the search warrant was executed was the type of
               egregious circumstance that warrants the application of the
               fundamental error doctrine. . . .


      Id. at *2.


[4]   Thereafter, Ware filed an amended petition for post-conviction relief. In that

      petition, Ware asserted that, had her trial counsel moved to suppress the

      evidence seized, that motion would have been successful under Article 1,

      Section 11 of the Indiana Constitution. As such, Ware argued, her trial counsel

      rendered ineffective assistance of counsel when he failed to move to suppress

      the evidence. After an evidentiary hearing, the post-conviction court rejected

      Ware’s argument1 and denied her petition for relief. This appeal ensued.


                                        Discussion and Decision
[5]   Ware appeals the post-conviction court’s denial of her petition for post-

      conviction relief. Our standard of review is clear:

               The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
               (citations omitted). When appealing the denial of post-



      1
        We need not discuss on appeal Ware’s argument that the post-conviction court erred when it concluded
      that her claim of ineffective assistance of counsel was precluded by our fundamental-error analysis in Ware I.
      Further, we note that the post-conviction court did not undertake an analysis under Article 1, Section 11
      when it rejected Ware’s petition. Nonetheless, we may affirm the post-conviction court’s judgment on any
      theory supported by the record, Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999), and it remains Ware’s
      burden to persuade this court that the post-conviction court’s judgment is erroneous, see Campbell v. State, 19
      N.E.3d 271, 273-74 (Ind. 2014).

      Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017                            Page 4 of 10
              conviction relief, the petitioner stands in the position of one
              appealing from a negative judgment. Id. To prevail on appeal
              from the denial of post-conviction relief, a petitioner must show
              that the evidence as a whole leads unerringly and unmistakably
              to a conclusion opposite that reached by the post-conviction
              court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of
              clear error—that which leaves us with a definite and firm
              conviction that a mistake has been made.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).2


[6]   In particular, Ware argues that she received ineffective assistance from her trial

      counsel:

              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing



      2
        Ware’s assertions on appeal that we should credit some portions of Detective Freel’s testimony over others,
      or otherwise consider evidence other than that most favorable to the post-conviction court’s judgment, are
      contrary to our standard of review, and we reject them.

      Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017                          Page 5 of 10
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 274.


[7]   Ware asserts that the officers who entered her house pursuant to a search

      warrant violated her rights under Article 1, Section 11 because they did not first

      announce that they were police officers.3 As the Indiana Supreme Court has

      made clear:

              This Court has long recognized that the Indiana Constitution’s
              provision dealing with searches and seizures requires “that the
              police knock and announce their authority before conducting a
              search of a dwelling.” State v. Dusch, 259 Ind. 507, 512, 289
              N.E.2d 515, 517 (1972). This requirement, however, “is not to
              be adhered to blindly regardless of the particular circumstances
              confronting the authorities at the time the search is to be
              conducted.” Id. In Dusch, this Court noted that such
              requirement may not apply when the facts present sufficient
              exigent circumstances. Id. at 512-13, 289 N.E.2d at 518.
              Subsequent Indiana appellate decisions have applied Dusch to
              find that police should knock and announce their authority
              before conducting a search; such procedure is not absolute, being



      3
        Ware makes no argument under the Fourth Amendment to the United States Constitution. Cf. Hudson v.
      Michigan, 547 U.S. 586, 590-602 (stating that Fourth Amendment jurisprudence does not require the
      exclusion of evidence following the failure of police to knock and announce). Ware also asserts that the
      officers’ entry into her home violated Indiana Code Section 35-33-5-7, but she does not provide an analysis
      under that statute that is independent of her analysis under Article 1, Section 11. Accordingly, we do not
      separately consider it.

      Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017                          Page 6 of 10
        subject to exigent circumstances; and reasonableness of police
        conduct is the touchstone for consideration. See Moran v. State,
        644 N.E.2d 536 (Ind. 1994) . . . .


        In recent years, this Court has expressed that “[t]he 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.” Litchfield v. State, 824 N.E.2d 356,
        359 (Ind. 2005) (citing Moran, 644 N.E.2d at 539). To determine
        whether a residential entry violated Article 1, Section 11, we
        apply a “totality-of-the-circumstances test to evaluate the
        reasonableness of the officer’s actions.” Duran v. State, 930
        N.E.2d 10, 17 (Ind. 2010). A more elaborate explanation and
        methodology for evaluating such reasonableness is provided in
        Litchfield:


                In sum, although we recognize 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.


        824 N.E.2d at 361.


Lacey v. State, 946 N.E.2d 548, 550 (Ind. 2011) (some citations omitted). In

other words, the ultimate question under Article 1, Section 11 is whether the

officers’ “decision . . . to enter without first knocking and announcing their

presence,” even when the officers have already procured a search warrant, was



Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017    Page 7 of 10
       reasonable “in light of the totality of the circumstances at the time of the entry.”

       Id. at 552.


[8]    We cannot agree with Ware’s assertion that, had her trial counsel objected to

       the admission of the seized evidence under Article 1, Section 11, the trial court

       would have been required to sustain the objection and exclude the evidence

       seized. First, the officers’ degree of concern, suspicion, or knowledge that Ware

       had engaged in criminal activity was substantial: officers had conducted two

       controlled drug buys from Ware prior to obtaining the search warrant for

       Ware’s residence.


[9]    Second, the degree of intrusion was minimal. On this point, we agree with the

       State’s assertion that “the correct comparison is not between searching a

       person’s home versus not search the home” but “between the degree of

       intrusion posed by standard knock-and-announce procedures versus the degree

       of intrusion in this case.” Appellee’s Br. at 18. That is, the officers here had

       already secured a valid warrant to search Ware’s residence; her challenge is not

       to the validity of that warrant but to the manner in which the officers executed

       that warrant, namely, entering Ware’s residence without first clearly

       announcing their presence. We conclude that that difference resulted in a

       minimal degree of intrusion on her ordinary activities.


[10]   Third, the extent of law enforcement needs was high. The officers had a valid

       warrant to search Ware’s residence for drugs; the officers knew that Ware had a

       prior felony conviction for dealing in cocaine; and the officers knew, based on


       Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017   Page 8 of 10
       their experience, that drug dealers commonly possess firearms. As such, when

       Ware observed the officers’ presence and then quickly closed the door on them,

       the need for the officers to secure the location and execute the warrant safely

       was substantial. Thus, in light of the totality of the circumstances, the officers’

       entry into Ware’s home without first clearly announcing their presence was

       reasonable and not in violation of her rights under Article 1, Section 11.


[11]   Finally, we reject Ware’s argument that the knock-and-announce rule under

       Article 1, Section 11 may only be disposed of “when exigent circumstances

       exist.” Reply Br. at 4. To be sure, Indiana’s case law frequently discusses the

       disposal of that rule in those circumstances, but the Indiana Supreme Court’s

       opinion in Lacey could not be more clear: the ultimate question under Article 1,

       Section 11 is the reasonableness of the police action under the totality of the

       circumstances. 946 N.E.2d at 550, 552. In any event, we agree with the State

       that Ware’s response to seeing the officers outside her front door, coupled with

       the drug-related nature of the alleged offenses, created exigent circumstances

       that justified the officers’ immediate entry to secure the area and execute the

       valid warrant.


[12]   In sum, had Ware’s trial counsel moved to suppress the evidence under Article

       1, Section 11, that motion would not have been successful. Accordingly,

       counsel did not render ineffective assistance when he chose to not pursue a

       motion to suppress, and we affirm the post-conviction court’s denial of Ware’s

       petition for post-conviction relief.



       Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017    Page 9 of 10
[13]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1610-PC-2297 | May 31, 2017   Page 10 of 10
