Shorter v. State, No. 19A-CR-2904, __ N.E.3d __ (Ind. Ct. App., July 6, 2020).

Baker, J.

Robert Shorter appeals his convictions for Level 2 Felony Dealing in Methamphetamine, Level 3 Felony Dealing in a Narcotic Drug, Level 3 Felony Conspiracy to Commit Dealing in a Narcotic Drug, and Level 3 Felony Aiding, Inducing, or Causing Dealing in Methamphetamine. [Footnoted omitted.] He argues that (1) the trial court erred in its decision to admit certain evidence, thereby violating both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution, and (2) the evidence was insufficient to support the conviction. Finding no error and that the evidence was sufficient, we affirm.

….

With regards to the warrantless arrest, ample exigent circumstances justifying the arrest were present. Shorter had contacted the confidential informant seeking help “to get him out of town” and told the informant that “he knew everybody was looking for him.” Tr. Vol. III p. 45. Furthermore, officers knew that Shorter had come from Michigan to sell drugs and had few ties to the local community. See, e.g., Myers v. State, 454 N.E.2d 861, 864 (Ind. 1983) (finding exigent circumstances existed and that defendant was likely to flee the state before an arrest warrant could be issued where defendant’s truck had an out-of-state plate, he provided an out-of-state address at his hotel, he had “little or no ties in Indiana,” and he had committed other criminal offenses in other states).

Additionally, officers had audio recordings of Shorter arranging drug purchases with the informant and video footage of him selling heroin to the informant, and they were able to identify him on the day of his arrest based on this information. Officers were unable to procure an arrest warrant only because they did not know the required personal identifying information (i.e., his real name, as opposed to various street names). Where “exigent circumstances [make] the procuring of a warrant impracticable” and probable cause otherwise exists, a warrantless arrest is reasonable. Banks v. State, 265 Ind. 71, 77-78, 351 N.E.2d 4, 9 (1976) (finding warrantless arrest was lawful where “[p]olice . . . had information from two informants, one of whom was an eyewitness, [upon] which their arrest . . . was based”). [Footnote omitted.]

….

In sum, we find that the warrantless arrest of Shorter was supported by probable cause and exigent circumstances, and that the warrantless search that produced the heroin and methamphetamine introduced as evidence was lawful. Given the particular facts of this case, it would have been advisable and best practice for officers to at least attempt to obtain an electronic warrant prior to the arrest, but because there were sufficient exigent circumstances consistent with those found in cases like Myers and Banks, a warrant was not required. As such, no Fourth Amendment violation occurred, and the trial court properly admitted any evidence obtained as a result of the arrest or the search of the home. [Footnote omitted.]

….

The judgment of the trial court is affirmed.

Bradford, C.J., concurs.

Pyle, J., dissents with a separate opinion.

Pyle, Judge dissenting with opinion.

I respectfully disagree with my colleague’s conclusion that law enforcement could not have obtained an arrest warrant and that there were exigent circumstances justifying the warrantless entry into the residence. [Footnote omitted.] Implied in their conclusion is the belief that law enforcement could not have obtained an arrest warrant because they did not know Shorter’s name. In addition, my colleagues conclude that Shorter’s desire to leave town was an emergency permitting law enforcement officers to dispense with obtaining an arrest or search warrant to prevent the imminent destruction or removal of evidence. My colleagues seem to argue that the exigency was Shorter’s desire to leave the State of Indiana. To fit into a recognized exigent circumstance exception, I assume that law enforcement was concerned that Shorter would leave, taking with him evidence of his drug dealing, thereby destroying or removing it from Indiana. However, I disagree. Because an arrest warrant could have been obtained and the facts do not demonstrate the existence of an emergency or the imminent destruction or removal of evidence, I believe the evidence obtained on the date of Shorter’s arrest should not have been admitted at trial.

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When we consider the advent of technology over the last several decades, it becomes clear that the facts in this case do not establish the existence of an emergency demonstrating the imminent destruction or removal of evidence. There is no evidence that Shorter was taking any action demonstrating the imminent destruction or removal of evidence. It is true that Shorter wanted to leave town, but that was not going to be possible; Shorter was contained. He was under active surveillance, and, if he had attempted to leave, the officers had the entire law enforcement apparatus of the State to make a felony stop and warrantless arrest of him once he left the property based upon the probable cause gained from the controlled buy on July 18, 2018. See IND. CODE § 35-33- 7-1. In addition, the law enforcement officers of the Madison County Drug Task Force, a group skilled in the application for search warrants, watched Shorter for approximately thirty minutes while he was inside the residence (more than enough time to seek a telephonic search warrant); the date was July 23, 2018, a Monday, at approximately 6:24 p.m. (a date and time when judicial officers are likely available). (App. Vol. II at 19). In addition, officers watched Shorter for an additional fifteen minutes as he walked outside the house, went to the garage area, and returned to the house (even more time). In addition, they waited even longer for additional officers to arrive before making a warrantless entry onto the curtilage and into the residence.

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The officers undoubtedly sensed the need to act quickly, but this was not an emergency because there was adequate time for the officers to seek a telephonic search warrant. While my colleagues correctly concede that the best practice for these officers was to obtain a warrant, I submit that it was the constitutionally required practice….Here, my able colleagues are equating Shorter’s desire to leave town with the imminent destruction or removal of evidence. [Footnote omitted.] The evidence does not support this conclusion. As a result, I respectfully dissent and believe the admitted evidence from the residence should have been excluded. [Footnote omitted.] The convictions entered for counts III and V should be affirmed, but the convictions for counts I and II should be reversed and the matter remanded for resentencing.

Shorter v. State, No. 19A-CR-2904, __ N.E.3d __ (Ind. Ct. App., July 6, 2020).

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