On December 14, 2009, Detective Brian Martin of the Fort Wayne Police Department supervised a confidential informant’s alleged controlled buy of cocaine from Foster. On the morning of January 4, 2010, twenty-one days after the controlled buy, Detective Jean Gigli and Detective Angie Reed went to Foster’s apartment to arrest him at Martin’s request. The detectives did not have an arrest warrant. Gigli “pound[ed]” on Foster’s door, awakening Foster and his girlfriend. Tr. p. 35. When Foster asked who was at the door, Gigli identified himself as a police officer and asserted that he was investigating a “911 hang up.” Tr. p. 35. Foster and his girlfriend told the officers through the door that they were at the wrong apartment, but Gigli said that he wanted to speak to them to make sure everything was okay. The State concedes that there was no report of a 911 call, and that Gigli’s statements were a ruse.
When Foster’s girlfriend opened the door, Gigli and Reed came into the apartment and handcuffed Foster. Gigli watched Foster and his girlfriend while Reed searched the apartment. Next, Gigli read Foster his Miranda advisements and transported him to the police station.
The State contends that the detectives’ warrantless, in-house arrest of Foster did not violate Article I, Section 11 of the Indiana Constitution. This section is identical in text to the Fourth Amendment, but Indiana has developed a distinct approach to search and seizure. Duran v. State, 930 N.E.2d 10, 17 (Ind. 2010). The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). The reasonableness of a search or seizure 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. Id. at 361. The degree of intrusion is evaluated from the citizen’s point of view. Duran, 930 N.E.2d at 18.
In this case, the police had a high degree of concern that a violation had occurred. Foster challenges the propriety of his arrest, but he does not dispute that the detectives had probable cause to arrest him based on the controlled buy. Nevertheless, the degree of intrusion in this case was also high. Foster had an expectation of privacy in his apartment. See id. (noting that the defendant had an expectation of privacy in his home). Gigli awakened Foster and his girlfriend, summoned them to the front door, and convinced them to open the door through subterfuge. Once Foster opened the door, the detectives entered, handcuffed Foster, and searched the apartment. Finally, law enforcement needs did not require Gigli and Reed to enter Foster’s apartment without a warrant. Twenty-one days had elapsed since the controlled buy, and there is no evidence that exigent circumstances called for an immediate arrest. There was ample time and opportunity for the officers to obtain an arrest warrant. In fact, the detectives obtained an arrest warrant after Foster was in custody. Balancing the three factors set forth in Litchfield, under the totality of the circumstances the officers’ warrantless entry and in-home arrest of Foster was unreasonable and violated Article I, Section 11 of the Indiana Constitution. See Trotter v. State, 933 N.E.2d 572, 581 (Ind. Ct. App. 2010) (determining that the officers‟ warrantless entry into the defendant’s barn violated the Indiana Constitution where the degree of the officers’ intrusion was high and there were no exigent circumstances to justify the intrusion).
NAJAM, J., concurs.
MAY, J., concurs in result with separate opinion:
I concur, but feel it is important to distinguish the facts before us from those in Barnes v. State, 946 N.E.2d 572, (Ind., 2011), where our Indiana Supreme Court addressed illegal home entry by police.
Foster, like Barnes, was arrested in his home without a warrant. Unlike Barnes, Foster did not resist. Instead, after his arrest, Foster made incriminating statements in the police car and at the station. Barnes was appealing his right to resist in his own home, while Foster is challenging the admissibility of the evidence collected after police allegedly entered his home illegally.