MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Feb 15 2017, 9:18 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rafeal A. Faulkner,                                      February 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1605-CR-1103
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Laura W. Zeman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D04-1508-F6-178



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017     Page 1 of 12
                                                 Case Summary
[1]   Rafeal A. Faulkner (“Faulkner”) appeals his convictions for two Class A

      misdemeanors: Maintaining a Common Nuisance1 and Taking a Child to a

      Nuisance;2 and one Class B misdemeanor, Possession of Marijuana. 3 Faulkner

      presents the issue of whether the trial court abused its discretion in admitting

      evidence gained in a warrantless search of Faulkner’s residence. We reverse.



                                  Facts and Procedural History
[2]   On August 24, 2015, a health care facility contacted the Tippecanoe County

      Sheriff’s Office for assistance in retrieving keys from a terminated employee.

      Sergeant Robert Hainje was dispatched to an address in Richmond Court, an

      apartment complex with buildings containing four units each. When Sergeant

      Hainje entered a common hallway, he could detect the odor of marijuana.

      Sergeant Hainje requested additional officers4 and waited for a few minutes

      before knocking at the door of Apartment B.


[3]   After Sergeant Hainje knocked four times, Faulkner opened the door and

      stepped into the hallway. Sergeant Hainje detected a stronger odor of burnt



      1
          Ind. Code § 35-48-4-13.
      2
          I.C. § 35-48-4-13.3 [repealed effective July 1, 2016].
      3
          I.C. § 35-48-4-11.
      4
       No officer other than Sergeant Hainje testified at either the suppression hearing or bench trial. Sergeant
      Hainje testified that other officers arrived and subsequently “cleared the apartment.” (Suppression Hrg. Tr.
      at 15.)

      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017          Page 2 of 12
      marijuana and saw a smoky haze inside the apartment. Sergeant Hainje asked

      if Adrianna Baker lived there, if any additional adults were inside the

      apartment, and if Faulkner could retrieve the health facility keys. Faulkner

      advised that Baker sometimes stayed there and adults other than Baker were

      then present; he agreed to get the keys from a bedroom.


[4]   Faulkner moved back into his apartment, “let[ting] the door shut easily.” (Tr.

      at 25.) As the door began to close, Sergeant Hainje “held [his] hand against the

      door because [Faulkner] said there were additional adult males in there” and

      Sergeant Hainje wanted to “freeze the situation.” (Tr. at 26.) Sergeant Hainje

      stepped across the threshold and entered the apartment.


[5]   Sergeant Hainje directed one of the apartment occupants to sit on the sofa. He

      asked Faulkner if they could speak privately and they walked together to a back

      bedroom. Sergeant Hainje requested that Faulkner consent to a premises

      search and advised Faulkner of his Miranda5 and Pirtle6 rights to consult with an

      attorney. Faulkner responded that “he would show [Sergeant Hainje] where

      the marijuana was.” (Tr. at 12.) Faulkner displayed an ashtray that contained

      two small marijuana cigarettes. He was arrested and charged with offenses

      related to marijuana possession and consumption in the presence of his two

      small children.




      5
          Miranda v. Arizona, 384 U.S. 436 (1966).
      6
          Pirtle v. State, 263 Ind. 16 (1975).


      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 3 of 12
[6]   Prior to trial, Faulkner moved to suppress the evidence gained as a result of the

      residential entry. Following a suppression hearing, the motion was denied

      upon the trial court’s determination that Faulkner had consented to the search.

      On March 24, 2016, Faulkner was tried in a bench trial and convicted of the

      charges against him, with the conviction for Maintaining a Common Nuisance

      entered as a misdemeanor conviction as opposed to a Level 6 felony. Faulkner

      received an aggregate sentence of two years, all suspended to probation. This

      appeal ensued.



                                   Discussion and Decision
[7]   Faulkner argues that Sergeant Hainje’s warrantless entry into his apartment

      violated his rights under the Fourth Amendment to the United States

      Constitution and Article 1, Section 11 of the Indiana Constitution.7 He asks

      that we review the denial of his motion to suppress. However, where a pretrial

      motion to suppress is denied, the case proceeds to trial, and the defendant

      renews his objection to the admission of evidence, the issue is best framed as

      challenging the admission of evidence at trial. Clark v. State, 994 N.E.2d 252,

      259 (Ind. 2013).




      7
        Although Faulkner references the Indiana Constitution in his brief, he then fails to develop a corresponding
      argument with respect to the analysis set forth in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005), that is:
      the degree of concern, suspicion, or knowledge that a violation has occurred, the degree of intrusion the
      method of the search or seizure imposes on the citizen’s ordinary activities, and the extent of law
      enforcement needs.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017             Page 4 of 12
[8]    In ruling on admissibility after 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). Also, the trial court 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 admissibility rulings for an

       abuse of discretion. Id. We reverse only when admission is clearly against the

       logic and effect of the facts and circumstances before the court and the error

       affects a party’s substantial rights. Id. However, the ultimate determination of

       the constitutionality of a search or seizure is a question of law that we consider

       de novo. Id.


[9]    Faulkner concedes having given a verbal assent to search; however, he

       maintains that his consent was “invalidated by [Sergeant Hainje]’s illegal

       entry.” Appellant’s Br. at 23. The State responds that exigent circumstances,

       relative to the imminent destruction of evidence, supported Sergeant Hainje’s

       warrantless entry into the apartment and that, “regardless of [Sergeant] Hainje’s

       conduct in entering the apartment,” Faulkner’s consent was “voluntary and

       valid.” Appellee’s Br. at 23.


[10]   The Fourth Amendment provides, in relevant part: “The right of the people to

       be secure in their persons, houses, papers, and effects, against unreasonable

       searches and seizures, shall not be violated….” The Fourth Amendment’s

       protections against unreasonable searches and seizures extend to the States



       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 5 of 12
       through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-65

       (Ind. 1998) (citing Mapp v. Ohio, 367 U.S. 643, 650 (1961)).


[11]   “It is axiomatic that the ‘physical entry of the home is the chief evil against

       which the wording of the Fourth Amendment is directed.’” State v. Straub, 749

       N.E.2d 593, 597 (Ind. Ct. App. 2001) (quoting U.S. v. U.S. Dist. Court for E. Dist.

       of Mich., S. Div., 407 U.S. 297, 313 (1972)). A principal protection against

       unnecessary intrusions into private dwellings is the Fourth Amendment’s

       warrant requirement. Straub, 749 N.E.2d at 597. Searches performed by

       government officials without obtaining warrants are per se unreasonable under

       the Fourth Amendment, subject to a ‘“few specifically established and well-

       delineated exceptions.”’ Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)

       (quoting Katz v. U.S., 389 U.S. 347, 357 (1967)).


[12]   “Any warrantless entry based on exigent circumstances must, of course, be

       supported by a genuine exigency.” Kentucky v. King, 563 U.S. 452, 470, 131 S.

       Ct. 1849, 1862 (2011). Exigent circumstances have been found: (1) where a

       suspect is fleeing or likely to take flight in order to avoid arrest; (2) where

       incriminating evidence is in jeopardy of being destroyed or removed absent an

       immediate arrest; (3) where a violent crime has occurred and entry by police

       can be justified to prevent further injury or aid the injured; and (4) in cases that

       involve hot pursuit or movable vehicles. Straub, 749 N.E.2d at 597-98. The

       State bears the burden of proving that an exception to the warrant requirement

       applied at the time of a warrantless search. Id. at 598. The remedy for an

       illegal warrantless search is the suppression of the evidence obtained from the
       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 6 of 12
       search. Cudworth v. State, 818 N.E.2d 133, 137 (Ind. Ct. App. 2004), trans.

       denied.


[13]   Our supreme court has explained the circumstances where the exigency of

       imminent destruction of evidence may be found applicable:

                 Exigent circumstances justifying a warrantless search exist where
                 the police have an objective and reasonable fear that the evidence
                 is about to be destroyed; the arresting officers must have a
                 reasonable belief that there are people within the premises who
                 are destroying or about to destroy the evidence. In such a case,
                 the evidence’s nature must be evanescent and the officers must
                 fear its imminent destruction. The fact that narcotics are
                 involved does not, standing alone, amount to exigent
                 circumstances justifying a warrantless search or seizure.


       Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind. 1994) (quoting Harless v. State

       (1991), Ind. App., 577 N.E.2d 245, 248 (citations omitted)). When this

       exception to the warrant requirement is asserted, the State is required to show

       evidence that the police had an objective and reasonable fear that the evidence

       was about to be destroyed. Esquerdo, 640 N.E.2d at 1027. “Federal law

       requires this showing to be made by clear and convincing evidence.” Id.


[14]   Turning to the particular facts of this case, we note that the sole witness at the

       bench trial was Sergeant Hainje. Sergeant Hainje testified that he smelled

       marijuana in a common hallway and summoned other officers. As he waited

       for the others, Sergeant Hainje stood in the hallway and “continued to hear

       loud music.” (Tr. at 7.) After a while, the music stopped and Sergeant Hainje

       heard hushed voices, “scurrying,” and movement inside the apartment. (Tr. at
       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 7 of 12
       8.) The music resumed. Sergeant Hainje knocked at the door “after the music

       started back up.” (Tr. at 8.) By this time, Faulkner had sprayed some air

       freshener.


[15]   Sergeant Hainje’s testimony suggests that he subjectively feared that evidence

       might be destroyed, although he stopped short of explicitly stating as much. He

       testified that he pushed against Faulkner’s door and entered the apartment “just

       to observe for the additional adult persons that were in the apartment and to

       just kind (inaudible) the situation so that I could determine what further action

       needed to be pursued.” (Tr. at 10.) He reiterated on cross-examination: “[The

       door] began to close and that’s when I held my hand against the door because

       he said there were additional adult males in there. As well as I wanted to freeze

       the situation due to the overwhelming odor of marijuana and the haze that was

       present.” (Tr. at 25-26.)


[16]   We disapprove of the rationale that the presence of adult males in a private

       apartment is, without more, predictive of destruction of evidence. The fact that

       a citizen has guests – few or many, male or female – is not an exigent

       circumstance supporting a warrantless intrusion. Nor is a professed desire to

       maintain the status quo or facilitate further investigation an exigency. Indeed,

       “[f]reedom from intrusions into the home or dwelling is the archetype of the

       privacy protections secured by the Fourth Amendment.” Snellgrove, 469 N.E.2d

       337, 340 (Ind. 1991).




       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 8 of 12
[17]   Apart from the concern as to the presence of adult males, we are left with the

       testimony that sounds were heard coming from inside the apartment and air

       freshener had been sprayed, in an apparently unsuccessful attempt to mask

       odor. There is no evidence of yelling or frenetic activity. See e.g., Harless, 577

       N.E.2d at 248-49 (finding police officers’ warrantless search illegal under the

       destruction of evidence exigent circumstance in part because officers did not

       “observe any persons inside the home scrambling frantically to destroy evidence

       of controlled substances before the officers entered”). Ultimately, there is

       insufficient evidence of an “objective and reasonable fear” that evidence was

       about to be destroyed when Sergeant Hainje entered the apartment without a

       warrant. Id. at 248.8


[18]   Notwithstanding the circumstances surrounding the entry, the State contends

       that Faulkner gave a valid consent to search after receiving Miranda and Pirtle

       warnings. In Galvin v. State, 582 N.E.2d 421 (Ind. Ct. App. 1991), trans. denied,

       the State argued that, even if police entry was illegal, the defendant’s consent to

       search was valid because it was not the result of the entry. Within an hour after




       8
         The State also argues that “the conduct was chiefly motivated by [Sergeant] Hainje’s concern about
       unknown adult males in the home under circumstances where illegal drugs were being consumed” and
       therefore, “Deputy Hainje was not legally required to obtain express consent from Defendant to put his hand
       on the door to allow him to observe, or to simply step inside the apartment.” Appellee’s Br. at 18-19. To the
       extent that the State may be said to claim that “officer safety” justified the warrantless entry, the State has
       identified no authority for the proposition that subjective safety concerns, in the absence of exigent
       circumstances, provide an exception to the warrant requirement of the Fourth Amendment. Moreover, the
       evidence does not support the State’s contention that officer safety was a legitimate concern when Sergeant
       Hainje entered the apartment alone and confronted the risk of unknown occupants rather than to wait
       outside the door until other officers arrived to back him up.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017           Page 9 of 12
       the officers made an illegal entry into the defendant’s home, and with several

       officers still present, the defendant was requested to give her consent to a

       search. She was not told that the court had refused to give the officers a search

       warrant. See id.


[19]   On appeal, the court observed that the relevant inquiry was ‘“whether, granting

       establishment of the primary illegality, the evidence to which instant objection

       is made has been come at by exploitation of that illegality or instead by means

       sufficiently distinguishable to be purged of the primary taint.”’ Id. at 424

       (quoting Snellgrove, 569 N.E.2d at 341). Several factors were to be considered in

       determining whether a consent to search given after an illegal entry is an act of

       free will sufficient to purge the primary taint: whether Miranda warnings were

       given; the temporal proximity of the illegal entry and the consent to search; the

       presence of intervening circumstances; the voluntariness of the consent; and

       particularly the purpose and the flagrancy of the official misconduct. Id. The

       Galvin Court found that the defendant’s consent was not given voluntarily and

       independent of the illegal entry and thus the consent was invalid. Id.


[20]   In Ware v. State, 782 N.E.2d 478 (Ind. Ct. App. 2003), a panel of this Court was

       again presented with the State’s argument that consent to search was not the

       product of an illegal entry and was valid. The defendant was given a Miranda

       warning; however, he was asked to consent to a search within minutes of an

       officer’s warrantless entry into his home. See id. at 483. There were no

       intervening circumstances between the warrantless entry and the request for

       consent, other than the arrival of additional police officers. Id. “The purpose of

       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 10 of 12
       Officer Carpenter’s warrantless entry was to secure the residence for the

       possible discovery of marijuana; however, no exigent circumstances existed.”

       Id. The Court made a final observation as to the flagrancy of the misconduct:

       “we note that a warrantless home entry should rarely be sanctioned when there

       is probable cause to believe that only a minor offense has been committed. Id.

       (citing Haley v. State, 696 N.E.2d 98, 103 (Ind. Ct. App. 1998), trans. denied).

       The Court declined to “overlook the inherent coercive effect” of the intrusion

       upon Ware’s decision to consent and concluded that Ware’s consent had not

       been given voluntarily and independently of the illegal entry. Id.


[21]   Here, Faulkner was retrieving keys at Sergeant Hainje’s request when Sergeant

       Hainje entered Faulkner’s residence “to freeze the situation.” (Tr. at 26.) The

       entry was not prompted by exigent circumstances. Sergeant Hainje took

       control of the premises by commanding Faulkner’s guest to sit on the sofa and

       asking Faulkner if they could speak privately. Without intervening

       circumstances or appreciable lapse of time, Faulkner was presented with a

       request that he consent to a premises search. Faulkner was given Miranda and

       Pirtle advice. According to Sergeant Hainje, Faulkner was “obviously not free

       to leave at that point.” (Suppression Hrg. Tr. at 20.) There was probable cause

       to believe that a minor offense of possession of marijuana had been committed;

       also, law enforcement knew that children were present.


[22]   An application of the factors found relevant in Galvin and Ware leads us to the

       same conclusion here. Although Faulkner received advice of rights, we cannot



       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 11 of 12
       say that his consent was given voluntarily and independent of the illegal entry.

       His consent, the product of an illegal entry, was invalid.



                                               Conclusion
[23]   The evidence obtained as a result of Sergeant Hainje’s warrantless entry into

       Faulkner’s apartment should have been suppressed. The trial court erred in

       admitting that evidence.


[24]   Reversed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1605-CR-1103 | February 15, 2017   Page 12 of 12
