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Aug 12, 2023

Officers violated federal, state constitutions in warrantless entry, searches, COA rules in reversal

The Court of Appeals of Indiana has reversed the denial of a defendant’s motion to suppress evidence related to his meth charge, finding the warrantless entry of his home tainted the subsequent

The Court of Appeals of Indiana has reversed the denial of a defendant’s motion to suppress evidence related to his meth charge, finding the warrantless entry of his home tainted the subsequent searches and discovery of evidence.

While assisting Marion County Community Corrections officers, members of the Indiana Gun Task Force smelled marijuana coming from Demarcus Nance’s home. The officers were at the home of Nance’s neighbor.

One of the officers ran the license plate on the car parked in front of Nance’s home. The plate didn’t match the car it was on, nor was it registered to Nance or his neighbor.

Sgt. Gregory Kessie and Detective Sergio De Leon decided to perform a “knock and talk” at Nance’s home, and the smell became stronger as they approached. Nance opened the main door and cracked the storm door to speak with the officers, at which point the smell became “overwhelming.”

De Leon questioned Nance about the car parked in front of his home. Based on the smell, Kessie asked Nance to step outside, but Nance didn’t respond and instead looked over his shoulder. The officers could hear noises coming from inside the house.

Kessie opened the door fully and grabbed Nance’s left wrist. Nance began to struggle, so the officers pulled him out of the doorway and handcuffed him.

Kessie and other officers then entered Nance’s home and briefly searched it. They saw a vacuum sealer on the kitchen counter, an AR-style rifle just underneath a bed in the front bedroom, a Taurus gun box in another bedroom and a large hydraulic press in the garage. There was no one else in the home, and they determined the sounds had come from a TV and a dog caged in a bedroom.

Based on the smell and items, De Leon obtained a warrant to search the home. That search revealed loose raw marijuana on a game box in the living room, a jar of marijuana in a bag in a bedroom closet, a kilo mold in the kitchen closet, items used to dilute narcotics, two UPS packages containing methamphetamine and a locked case in a closet.

After getting a second search warrant, officers opened the case and found 10 pounds of methamphetamine, two ounces of marijuana, two grams of cocaine, $23,470 in cash, three cellphones and digital scales.

The state charged Nance with Level 2 felony dealing in meth. He moved to suppress the evidence obtained during the searches, but the Marion Superior Court denied his motion.

On interlocutory appeal, Nance argued the officers’ actions took an unconstitutional turn and violated both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution as soon as they grabbed him and pulled him out of his home. He also argued that all the evidence collected by the officers after they detained him was tainted by constitutional violations and should be suppressed.

Looking at the Fourth Amendment claim, the appellate court first found that the officers were not authorized to detain Nance or to conduct any of the searches of his home that followed after that.

“We find the threshold was crossed,” Judge Leanna Weissmann wrote. “We also conclude that the State has failed to prove that the marijuana smell flowing from Nance’s home, standing alone, created probable cause to arrest Nance or exigent circumstances that would justify the warrantless entry.”

The COA distinguished Nance’s case fromUnited States v. Santana, 427 U.S. 38, 42 (1976), and United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991), which the state cited. Both of those cases involved officers entering homes without a warrant, but with reasonable suspicion to make an arrest and/or after announcing an arrest.

“But, here, the State has not established that the officers had probable cause to arrest Nance or that the officers announced the arrest before entering to accomplish that arrest,” Weissmann wrote. “And most notably, Nance did not acquiesce in any detention, and the outer door to his home was only slightly open.”

The state’s reliance on Terry v. Ohio, 392 U.S. 1, 30 (1968), also failed, the COA ruled.

“We agree with Nance that this was a rogue knock and talk, rather than, as the State claims, a knock and talk turned investigatory stop authorized by Terry,” Weissmann wrote. “… Nance had the right to decline to answer the officers’ questions during the knock and talk and to refuse to step outside his home.”

The state also argued that the Fourth Amendment allowed the officers to cross the threshold because they had probable cause to arrest Nance solely based on the marijuana smell.

Rejecting that argument, the COA held, “Here, there is no evidence that the officers detected a marijuana smell on Nance. The State cites no authority that would support a finding that the officers had probable cause to arrest Nance simply because his home smelled of marijuana. Without probable cause to arrest Nance, the officers violated the Fourth Amendment by crossing the threshold to detain or even arrest him.”

Further, even if the officers had probable cause, they lacked exigent circumstances to justify the first warrantless entry.

“Given that the officers only had reasonable suspicion that Nance might possess marijuana and no exigent circumstances existed, their breach of the threshold of his home violated the Fourth Amendment,” Weissmann wrote.

Looking at Nance’s argument that the second warrantless entry into his home violated the Fourth Amendment because it stemmed from his illegal detention, the court found that the state proved no valid exception to the warrant requirement justifying the second entry. The court cited Maryland v. Buie, 494 U.S. 325, 334 (1990).

“Because Buie defined a protective sweep as incident to arrest and the State has failed to establish any arrest (or even a right to arrest), the officers’ second entry into the home cannot be justified as a ‘protective sweep,’” Weissmann wrote.

The court thus found the second warrantless entry also violated the Fourth Amendment.

As for the searches under warrant, the COA determined they were tainted by police misconduct.

“A reasonable conclusion, which the State does not dispel, is that the trial court relied on the illegally obtained evidence when it issued the warrant authorizing the officers to search not only for marijuana but also for firearms and ammunition at Nance’s home,” Weissmann wrote. “Therefore, the evidence on which the officers relied in establishing probable cause — and on which the trial court based its finding of probable cause for the warrant — was obtained by exploitation of the prior illegal entry into Nance’s home and not by means distinguishable enough to be purged of the primary taint.”

As for the Indiana Constitution, the appellate court found, “The degree of suspicion that marijuana was within Nance’s home was high, but the degree of suspicion that Nance possessed the marijuana was somewhat less so.

“… Police had no evidence of any offense other than possible marijuana possession when they first entered Nance’s home to detain him,” Weissmann wrote. “Possession of marijuana without enhancing circumstances is a Class B misdemeanor — one of the more minor offenses in the Indiana criminal code.”

Thus, considering the factors under Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the appellate court concluded the state failed to establish that the multiple searches of Nance’s home and his detention were reasonable under Article 1, Section 11.

“As all of the challenged searches and seizures violate both the Fourth Amendment and Article 1, § 11, we reverse the trial court’s denial of Nance’s motion to suppress and remand for further proceedings consistent with this opinion,” Weissmann concluded.

Judges L. Mark Bailey and Elaine Brown concurred in Demarcus Nance v. State of Indiana, 22A-CR-2581.

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