                                                                          Jun 23 2015, 1:31 pm




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joel M. Schumm                                             Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           George P. Sherman
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

C.P.,                                                      June 23, 2015

Appellant-Respondent,                                      Court of Appeals Case No.
                                                           49A02-1411-JV-789
        v.                                                 Appeal from the Marion Superior
                                                           Court

State of Indiana,                                          The Honorable Geoffrey Gaither,
                                                           Magistrate
Appellee-Petitioner.                                       The Honorable Marilyn A. Moores,
                                                           Judge
                                                           Case No. 49D09-1407-JD-1720




Vaidik, Chief Judge.



                                      Case Summary
    1. Many state and federal courts have applied an exception to the Fourth

        Amendment’s exclusionary rule called the new-crime exception. This

Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                          Page 1 of 18
              exception provides that notwithstanding a strong causal connection in

              fact between an illegal search or seizure by law enforcement and a

              defendant’s response, if the defendant’s response is itself a new and

              distinct crime, then evidence of the new crime is admissible

              notwithstanding the prior illegality. Because the purpose of the

              exclusionary rule—to deter police misconduct—is not advanced by

              suppressing evidence of a new crime committed by a defendant after an

              illegal search or seizure, we apply the new-crime exception to the Fourth

              Amendment’s exclusionary rule. And we also conclude that this

              exception applies equally to the Indiana Constitution. Accordingly,

              evidence that C.P. battered a police officer after being illegally seized is

              admissible. We therefore affirm C.P.’s adjudication as a juvenile

              delinquent for committing what would be Level 6 battery against a

              public-safety official if committed by an adult.



                             Facts and Procedural History
[1]   On July 14, 2014, C.P. attended Holy Spirit Festival at Holy Spirit Catholic

      Church on East 10th Street in Indianapolis. Indianapolis Metropolitan Police

      Department Officer Jeffrey Wood was working as a security guard for the

      church. 1 Officer Wood’s responsibilities included enforcing the church’s




      1
        Officer Wood, who was wearing an IMPD uniform, explained that although he was off-duty, “as a sworn
      law enforcement officer for the City of Indiana[polis], I am subject to enforce any laws whether I am
      technically on the clock with the city or not.” Tr. p. 4.

      Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                    Page 2 of 18
      policies on dress and language. One policy provided that “no underclothing be

      exhibited in a public fashion where the other people would be forced to observe

      their undergarments.” Tr. p. 5. Another policy prohibited “loud noises and

      obscenities.” Id. at 7. Officer Wood was authorized to deal with violators “as

      deemed necessary.” Id. at 5.


[2]   Officer Wood saw C.P. and some of his friends walking around the festival.

      C.P. was wearing his pants down below his “buttocks exposing [his] underwear

      to the patrons of the festival.” Id. When Officer Wood asked C.P. to pull up

      his pants, C.P. nodded his head and pulled them up.


[3]   About an hour later, Officer Wood again saw C.P., whose “pants [were] down

      exposing his undergarments to the patrons of the . . . festival.” Id. at 6. Officer

      Wood asked C.P. for a second time to pull up his pants. C.P. briefly turned

      around but then walked away from Officer Wood. As C.P. walked away, he

      said something to Officer Wood, but Officer Wood could not hear him. So,

      Officer Wood told C.P. that if he wanted to talk to him, C.P. needed “to turn

      around and speak to [him].” Id. Using profanity, C.P. told Officer Wood that

      he “didn’t have the right to follow” and “talk to him.” Id. Officer Wood told

      C.P., who was “getting more and more agitated and louder,” “to leave the

      festival.” Id. But because C.P. continued to curse and started walking deeper

      into the crowd, Officer Wood “put [his] left hand on [C.P.’s] right shoulder to

      sort of steer him” off church property. Id. at 7; see also id. at 17 (“STATE:

      When you placed your hand on the respondent’s shoulder, what was your goal

      at that time? WITNESS: To guide him through the crowd and off the

      Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015   Page 3 of 18
      property.”). In response, C.P. threw his arm in the air and said “don’t put your

      mother fu**ing hands on me . . . .” Id. at 23. Because C.P. was getting more

      agitated and “women and children [were] around,” Officer Wood tried “to

      move [C.P.] through the crowd quicker to get him off of the property.” Id. In

      order to do so, Officer Wood put his hand on C.P.’s shoulder a second time, at

      which point C.P. “threw his hand in the air, spun around[,] took up a fighting

      stance[,] and shoved [Officer Wood] in [the] chest.” Id. Officer Wood “went

      backwards” and had to regain his footing. Id. at 24. Officer Wood arrested

      C.P. for battery.


[4]   The State filed a petition alleging that C.P. was a delinquent child for

      committing what would be Level 6 battery against a public-safety official if

      committed by an adult. 2 At the fact-finding hearing, defense counsel argued

      that when Officer Wood put his hand on C.P.’s shoulder, he was illegally seized

      because “there [was] no legal reason for [C.P.] to be stopped.” Id. at 9, 18.

      Accordingly, defense counsel moved to suppress everything that occurred after

      Officer Wood put his hand on C.P.’s shoulder. Although initially granting

      C.P.’s motion to suppress, the juvenile court later reversed course and ruled that

      Officer Wood’s act of putting his hand on C.P.’s shoulder was not a “stop”

      within the meaning of the Fourth Amendment. Id. at 22. Thereafter, the

      juvenile court entered a true finding for battery. At the dispositional hearing,



      2
        The State also alleged that C.P. committed what would be Class A misdemeanor resisting law enforcement
      if committed by an adult, but the juvenile court entered a not-true finding on this count. Therefore, we do
      not discuss this charge or its underlying facts.

      Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                        Page 4 of 18
      the juvenile court adjudicated C.P. a delinquent child but closed the case and

      discharged C.P. and his mother.


[5]   C.P. now appeals.



                                  Discussion and Decision
[6]   C.P. contends that he was illegally seized when Officer Wood put his hand on

      C.P.’s shoulder to steer him off church property and, therefore, “the resulting

      evidence regarding the battery of Officer Wood is inadmissible” pursuant to the

      exclusionary rule. Appellant’s Br. p. 6. He raises this issue under both the

      Fourth Amendment to the United States Constitution and Article 1, Section 11

      of the Indiana Constitution.



                                                  I. Seizure
[7]   C.P. argues that because there was no concern that a crime had occurred or was

      about to occur, he was illegally seized when Officer Wood put his hand on

      C.P.’s shoulder to steer him off church property.


                                A. United States Constitution
[8]   First, we address whether C.P. was illegally seized under the United States

      Constitution. The Fourth Amendment to the United States Constitution

      protects citizens from unreasonable searches and seizures, and this protection

      has been extended to the states through the Fourteenth Amendment. Taylor v.

      State, 842 N.E.2d 327, 330 (Ind. 2006). The fundamental purpose of the Fourth

      Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015   Page 5 of 18
      Amendment is “to protect the legitimate expectations of privacy that citizens

      possess in their persons, their homes, and their belongings.” Id. (citing Ybarra v.

      Illinois, 444 U.S. 85, 91 (1979)). Here, the State does not dispute that wearing

      saggy pants and cursing does not create reasonable suspicion that a crime has

      occurred or is about to occur. See Tr. p. 16 (Officer Wood testifying that he was

      not investigating any delinquent activity by C.P.).


[9]   The Fourth Amendment’s requirement that searches and seizures be founded

      upon an objective justification governs all seizures of the person, including

      seizures that involve only a brief detention short of traditional arrest. United

      States v. Mendenhall, 446 U.S. 544, 551 (1980). Accordingly, if Officer Wood

      seized C.P. when he put his hand on C.P.’s shoulder, Officer Wood’s conduct

      was constitutional only if he reasonably suspected C.P. of criminal activity. See

      id. at 551-52. “But obviously, not all personal intercourse between policemen

      and citizens involves ‘seizures’ of persons.” Id. at 552 (quotation omitted).

      Rather, it is “[o]nly when the officer, by means of physical force or show of

      authority, has in some way restrained the liberty of a citizen . . . that a ‘seizure’

      has occurred.” Id. (quotation omitted). “The word ‘seizure’ readily bears the

      meaning of a laying on of hands or application of physical force to restrain

      movement, even when it is ultimately unsuccessful.” California v. Hodari D., 499

      U.S. 621, 626 (1991). Examples of circumstances that might indicate a seizure

      include “the threatening presence of several officers, the display of a weapon by

      an officer, some physical touching of the person of the citizen, or the use of language

      or tone of voice indicating that compliance with the officer’s request might be

      Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015        Page 6 of 18
       compelled.” Mendenhall, 446 U.S. at 554-55 (emphasis added). “In the absence

       of some such evidence, otherwise inoffensive contact between a member of the

       public and the police cannot, as a matter of law, amount to a seizure of that

       person.” Id. at 555.


[10]   Here, the evidence shows that Officer Wood “put [his] left hand on [C.P.’s]

       right shoulder to sort of steer him” off church property. Tr. p. 7; see also id. at 17

       (“STATE: When you placed your hand on the respondent’s shoulder, what was

       your goal at that time? WITNESS: To guide him through the crowd and off the

       property.”). Officer Wood put his hand on C.P.’s shoulder a second time when

       he tried “to move [C.P.] through the crowd quicker to get him off of the

       property.” Id. at 23. We find that C.P. was seized under the Fourth

       Amendment because Officer Wood twice put his hand on C.P.’s shoulder and

       restrained his movement by trying to guide him off church property. And

       because Officer Wood did not reasonably suspect C.P. of any criminal activity,

       the seizure was illegal.


                                      B. Indiana Constitution
[11]   We reach the same conclusion under the Indiana Constitution. The language

       of Article 1, Section 11 of the Indiana Constitution mirrors the Fourth

       Amendment’s protections against unreasonable searches and seizures.

       Trowbridge v. State, 717 N.E.2d 138, 143 (Ind. 1999). However, the tests for

       determining a rights violation differ for the state and federal provisions. Id.

       This is because the Indiana Constitution has “unique vitality, even where its


       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015     Page 7 of 18
       words parallel federal language.” State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.

       2002); see also Shotts v. State, 925 N.E.2d 719, 726 (Ind. 2010). When evaluating

       Section 11 claims, we place the burden on the State to show that under the

       totality of the circumstances its intrusion was reasonable. Gerschoffer, 763

       N.E.2d at 965. This determination turns 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. Litchfield v. State, 824

       N.E.2d 356, 361 (Ind. 2005).


[12]   Here, there was no concern, suspicion, or knowledge that any criminal

       violation had occurred. See Tr. p. 16. Rather, C.P. was wearing baggy pants

       and cursing in violation of church policy. Although the degree of intrusion

       from a brief investigatory stop is slight, the extent of law-enforcement needs in

       this case was non-existent. Officer Wood, an IMPD officer, was working as a

       security guard for the church and enforcing the church’s policies on dress and

       language. Balancing these factors, we conclude that C.P. was illegally seized

       under Article 1, Section 11 when Officer Wood twice put his hand on C.P.’s

       shoulder and restrained his movement by trying to guide him off church

       property.



                                      II. Exclusionary Rule



       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015    Page 8 of 18
[13]   Because he was illegally seized, C.P. argues that the evidence of his battery of

       Officer Wood is inadmissible pursuant to the exclusionary rule. See Appellant’s

       Br. p. 6.


                                 A. United States Constitution
[14]   First, we address the exclusionary rule under the United States Constitution.

       The exclusionary rule “is a judicially created remedy designed to safeguard” the

       right of the people to be free from unreasonable searches and seizures. United

       States v. Calandra, 414 U.S. 338, 348 (1974). The fact that a Fourth Amendment

       violation has occurred—i.e., that a search or arrest was unreasonable—does not

       necessarily mean that the exclusionary rule applies. Herring v. United States, 555

       U.S. 135, 140 (2009). Indeed, “exclusion ‘has always been our last resort, not

       our first impulse.’” Id. (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)).


[15]   To trigger the exclusionary rule, the police conduct must be sufficiently

       deliberate that exclusion can meaningfully deter it and sufficiently culpable that

       such deterrence is worth the price paid by the justice system. Id. at 144. That

       is, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent

       conduct or, in some circumstances, recurring or systemic negligence. Id.


[16]   Because the exclusionary rule only applies when the benefits of deterrence

       outweigh the social costs of excluding the evidence—such as setting the guilty

       free and the dangerous at large, id. at 141; Hudson, 547 U.S. at 591—the United

       States Supreme Court has identified several exceptions to the exclusionary rule.

       For example, the United States Supreme Court has ruled that the exclusionary

       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015     Page 9 of 18
       rule does not apply when police act in objectively reasonable reliance on a

       subsequently invalidated search warrant, United States v. Leon, 468 U.S. 897, 922

       (1984) (good-faith exception), or when the causal connection between the

       Fourth Amendment violation and the evidence objected to is “remote,” Hudson,

       547 U.S. at 593 (attenuation doctrine). The exclusionary rule also does not

       apply when the evidence in question would inevitably have been discovered

       without reference to the police error or misconduct, Nix v. Williams, 467 U.S.

       431, 448 (1984) (inevitable-discovery doctrine), or when a later, lawful seizure

       is genuinely independent of an earlier, tainted one, Murray v. United States, 487

       U.S. 533, 542 (1988) (independent-source doctrine).


[17]   But there is another exception to the exclusionary rule that many federal and

       state courts have applied under the Fourth Amendment: the new-crime

       exception. Indiana courts have yet to directly address whether we, too, should

       apply the new-crime exception under the Fourth Amendment. 3 Professor

       LaFave discusses this exception in his treatise on the Fourth Amendment:

                On occasion, when the police conduct an illegal arrest or an illegal
                search, this will prompt the person arrested or subjected to the search
                to react by committing some criminal offense. He might attack the
                arresting or searching officer, flee from that officer, attempt to bribe
                him, threaten the officer with harm should he testify against him,



       3
         Although we have never explicitly applied the new-crime exception to the Fourth Amendment’s
       exclusionary rule, this topic has surfaced in several Indiana cases. See, e.g., State v. Owens, 992 N.E.2d 939,
       943 (Ind. Ct. App. 2013), trans. denied; Cole v. State, 878 N.E.2d 882, 888 (Ind. Ct. App. 2007), abrogated on
       other grounds by Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014); Ronco v. State, 840 N.E.2d 368, 376 (Ind. Ct. App.
       2006), issue summarily aff’d by Ronco v. State, 862 N.E.2d 257, 259 n.1 (Ind. 2007); Dennis v. State, 736 N.E.2d
       300, 303 (Ind. Ct. App. 2000), reh’g denied.

       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                           Page 10 of 18
               attempt to destroy evidence, or make some criminal misrepresentation
               in an effort to bring the incident to a close. In such cases, courts are
               confronted with the question of whether evidence of this new crime (or
               other evidence discovered after it) must be suppressed as a fruit of the
               prior illegal arrest or search.
       6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment §

       11.4(j) (5th ed. 2012) (footnotes omitted). LaFave explains that in cases where

       the response has been a physical attack or threat of a physical attack on the

       officer who made the illegal arrest or search, “courts have . . . held that the

       evidence of this new crime (or, other evidence discovered after the ‘intervening

       circumstances’ of a new crime) is admissible.” Id. (footnotes omitted). In fact,

       it “appears to be a nearly universal rule in American jurisdictions that when a

       suspect responds to an unconstitutional search or seizure by a physical attack

       on the officer, evidence of this new crime is admissible [under the Fourth

       Amendment] notwithstanding the prior illegality.” State v. Lusby, 198 P.3d 735,

       738 (Idaho Ct. App. 2008); see also Brown v. City of Danville, 606 S.E.2d 523, 530

       (Va. Ct. App. 2004) (“[F]ederal and state courts alike have uniformly rejected

       the argument that trial courts should suppress evidence relating to [a

       defendant’s] violence or threatened violence toward police officers subsequent

       to an unlawful search or seizure or a warrantless entry.” (quotation omitted)).


[18]   For example, in State v. Brocuglio, 826 A.2d 145 (Conn. 2003), the defendant

       threatened to release his dog when police officers, without a warrant, entered

       his driveway and fenced-in backyard to ticket his unregistered and abandoned

       cars pursuant to city ordinance, and an altercation ensued. On appeal to the

       Supreme Court of Connecticut, the State argued that “the defendant’s conduct

       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015       Page 11 of 18
       constituted a new crime subsequent to the unlawful police entry and that [the

       Connecticut Supreme Court] should apply the new[-]crime exception to the

       exclusionary rule adopted by many other jurisdictions.” Id. at 150-51.


[19]   The Connecticut Supreme Court decided as a matter of first impression the

       “issue of whether a new crime committed in response to an unlawful police

       entry into one’s residence is attenuated sufficiently to break the chain of

       causation from the unlawful entry.” Id. at 151. The court acknowledged that

       many jurisdictions, “both federal and state, have considered and adopted a

       new[-]crime exception to the [Fourth Amendment’s] exclusionary rule.” Id. at

       152 (citing federal cases from the 1st, 4th, 5th, 7th, 8th, 9th, 10th, and 11th

       Circuits as well as state cases from Florida, Illinois, Massachusetts, Minnesota,

       New York, North Carolina, North Dakota, Oregon, South Dakota,

       Washington, and Washington, D.C.). 4 In deciding whether to adopt the new-

       crime exception to the Fourth Amendment’s exclusionary rule, the Connecticut

       Supreme Court found persuasive the rationale that “the limited objective of the

       exclusionary rule is to deter unlawful police conduct—not to provide citizens

       with a shield so as to afford an unfettered right to threaten or harm police

       officers in response to the illegality.” Id. The Connecticut Supreme Court




       4
        More states should be added to this list, including Alaska, Elson v. State, 659 P.2d 1195 (Alaska 1983);
       Idaho, see Lusby, 198 P.3d 735; Kentucky, see Commonwealth v. Johnson, 245 S.W.3d 821 (Ky. Ct. App. 2008);
       Maine, see State v. Boilard, 488 A.2d 1380 (Me. 1985); Montana, see State v. Ottwell, 779 P.2d 500 (Mont.
       1989); New Mexico, see State v. Travison B., 149 P.3d 99 (N.M. Ct. App. 2006); Texas, see State v. Mitchell, 848
       S.W.2d 894 (Tex. Crim. App. 1993); and Virginia, see Brown, 606 S.E.2d 523.

       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                           Page 12 of 18
specifically agreed with the Seventh Circuit in United States v. Pryor, in which

Judge Easterbrook said:

         Police do not detain people hoping that they will commit new crimes
         in their presence; that is not a promising investigative technique, when
         illegal detention exposes the police to awards of damages. Thus the
         gains from extending the rule to exclude evidence of fresh crimes are
         small, and the costs high. If the rule were applied rigorously, suspects
         could shoot the arresting officers without risk of prosecution. An
         exclusionary rule that does little to reduce the number of unlawful
         seizures, and much to increase the volume of crime, cannot be
         justified.
32 F.3d 1192, 1196 (7th Cir. 1994); see also United States v. Bailey, 691 F.2d 1009,

1016-17 (11th Cir. 1982) (“[N]otwithstanding a strong causal connection in fact

between lawless police conduct and a defendant’s response, if the defendant’s

response is itself a new, distinct crime, then the police constitutionally may

arrest the defendant for that crime. . . . A contrary rule would virtually

immunize a defendant from prosecution for all crimes he might commit that

have a sufficient causal connection to the police misconduct.”). Accordingly,

the Connecticut Supreme Court concluded that “in light of the defendant’s

ability to obtain relief to protect his constitutional rights[ 5] and the public[-

]policy concerns regarding escalating violence, we hereby adopt the new[-]crime




5
 The Connecticut Supreme Court noted that “there already exist legal remedies available to victims of
unlawful police actions.” Brocuglio, 826 A.2d at 153. For instance, the court noted that “the defendant in the
present case properly could have invoked the exclusionary rule to suppress the evidence regarding the
vehicles that the police had obtained while unlawfully present in the defendant’s backyard.” Id.

Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                         Page 13 of 18
       exception to the [Fourth Amendment’s] exclusionary rule.” Brocuglio, 826 A.2d

       at 153.


[20]   Like the many federal and state courts before us, we agree that the purpose of

       the Fourth Amendment’s exclusionary rule—to deter police misconduct—is not

       advanced by suppressing evidence of a new crime committed by the defendant

       after an illegal search or seizure. We therefore hold that notwithstanding a

       strong causal connection in fact between an illegal search or seizure by law

       enforcement and a defendant’s response, if the defendant’s response is itself a

       new and distinct crime, then evidence of the new crime is admissible

       notwithstanding the prior illegality. 6


[21]   Applying this exception to the facts of this case, we conclude that although C.P.

       was illegally seized when Officer Wood twice put his hand on C.P.’s shoulder

       to guide him off church property, C.P. committed a new and distinct crime

       against Officer Wood when he battered him. Accordingly, the juvenile court

       properly admitted evidence of C.P.’s commission of battery against Officer

       Wood.




       6
        We acknowledge an exception for the crime of resisting law enforcement by fleeing. The Indiana Supreme
       Court held in Gaddie v. State that a defendant is not guilty of resisting law enforcement by fleeing if the police
       order to stop is unlawful, that is, not supported by probable cause or reasonable suspicion. 10 N.E.3d 1249,
       1255 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                              Page 14 of 18
                                         B. Indiana Constitution
[22]   The focus of the exclusionary rule under the Indiana Constitution is the

       reasonableness of police conduct. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.

       2001). “Admissibility [of evidence] is lawful if the court can declare the process

       reasonable.” Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995); see also id. at 80

       (holding that because the search of the defendant’s car was unreasonable, the

       Indiana Constitution “mandate[d]” that the evidence found as a result of the

       search be suppressed). Although Indiana’s exclusionary rule is different from

       the Fourth Amendment’s exclusionary rule, we do recognize the good-faith

       exception to the Fourth Amendment’s exclusionary rule under the Indiana

       Constitution. See Hopkins v. State, 582 N.E.2d 345, 351 (Ind. 1991) (“[T]he

       federal good-faith exception enunciated in United States v. Leon, [468 U.S. 897

       (1984),] has been held applicable to the prohibition of unreasonable search and

       seizure found in [Article 1, Section 11] of the Indiana Constitution.”), reh’g

       denied; Wendt v. State, 876 N.E.2d 788, 790-91 (Ind. Ct. App. 2007), trans.

       denied; see also Ind. Code § 35-37-4-5 (codification of good-faith exception). 7


[23]   We, however, have not adopted the attenuation doctrine under the Indiana

       Constitution as it applies to a defendant’s commission of a new and distinct




       7
        Indiana, however, has not adopted two of the other federal exclusionary-rule exceptions under the Indiana
       Constitution. For example, we have not adopted the inevitable-discovery exception, see Gyamfi v. State, 15
       N.E.3d 1131, 1138 (Ind. Ct. App. 2014), reh’g denied; Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App.
       2002), trans. denied, or the attenuation doctrine, see Trotter v. State, 933 N.E.2d 572, 582 (Ind. Ct. App. 2010).
       We discuss Trotter more above.

       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015                              Page 15 of 18
crime after an illegal search or seizure by law enforcement. In fact, another

panel of this Court held in Trotter v. State that “the attenuation doctrine as it

currently exists as a separate analysis to circumvent the exclusionary rule for

Fourth Amendment purposes has no application under the Indiana

Constitution.” 933 N.E.2d 572, 582 (Ind. Ct. App. 2010), trans. not sought. In

Trotter, the defendant responded to police officers’ illegal entry into the pole

barn attached to his house by pointing a rifle at them and yelling at them to get

out, after which a standoff ensued between the defendant and police for several

hours. Id. at 578. The Trotter Court concluded that the defendant’s “act of

pointing a firearm was a direct response to the police misconduct, and in no

way does [the defendant’s] behavior make the police misconduct any more

reasonable. . . . [W]e will not hold [the defendant] to a higher standard of

reasonableness than the trained professionals who unlawfully invaded his

residence in the night.” Id. at 582; see also Webster v. State, 908 N.E.2d 289, 293

(Ind. Ct. App. 2009) (“[W]e are not convinced that after we determine the

police acted unreasonably under the Indiana Constitution, we then must

determine whether the attenuation doctrine prevents the exclusionary rule from

applying, and the State provides no specific argument regarding the application

of the attenuation doctrine under the Indiana Constitution. We believe that a

defendant’s actions during a police encounter are considered as part of the

totality of the circumstances in determining whether the police acted

reasonably.”), trans. denied.




Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015    Page 16 of 18
We disagree with the Trotter Court that evidence of new and distinct crimes

committed by a defendant in response to an illegal search or seizure by law

enforcement is inadmissible under the Indiana Constitution. Although in some

cases the Indiana Constitution “confers greater protections to individual rights

than the Fourth Amendment affords,” see Shotts, 925 N.E.2d at 726, the Indiana

Constitution does not compel a different result here. We find the rationale that

the other federal and state courts have cited in applying the new-crime

exception to the Fourth Amendment’s exclusionary rule equally applicable to

the Indiana Constitution. That is, if evidence that defendants committed new

and distinct crimes in response to illegal searches or seizures by law

enforcement were inadmissible, then defendants could attack or shoot arresting

officers without risk of prosecution. As the Seventh Circuit explained in Pryor,

“An exclusionary rule that does little to reduce the number of unlawful

seizures, and much to increase the volume of crime, cannot be justified.” 32

F.3d at 1196; see also Lusby, 198 P.3d at 739 (“In sum, the exclusionary rule

does not give the aggrieved individual carte blanche to commit criminal acts

against a police officer with impunity merely because the officer erred by

conducting an unlawful search or seizure.”); State v. Ottwell, 779 P.2d 500, 502-

03 (Mont. 1989) (“[T]o allow a person whose Fourth Amendment rights were

violated to respond with unlimited violence toward[] the violator and then to

grant the person immunity via the exclusionary rule, would create intolerable

results. Such a ruling would allow, and possibly even encourage, more

violence.”). Such a rule cannot be justified under the Indiana Constitution

either. We therefore hold that the new-crime exception applies to Indiana’s
Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015   Page 17 of 18
       exclusionary rule. Because the juvenile court properly admitted evidence that

       C.P. battered Officer Wood after he was illegally seized, we affirm C.P.’s

       adjudication as a juvenile delinquent for committing what would be Level 6

       battery against a public-safety official if committed by an adult.


[24]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1411-JV-789 | June 23, 2015   Page 18 of 18
