ROBB, J.
. . . Officer David Gemeinhart of the East Chicago Police Department attempted to serve Nelson Hernandez with an arrest warrant at the address listed on the warrant, 3902 Butternut, East Chicago, Indiana. . . . Officer Gemeinhart spoke with Hernandez’s mother, who told him that Hernandez was living in “the Harbor,” which is apparently a neighborhood of East Chicago, though the record is not entirely clear on this point. . . . .
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. . . Officers Gemeinhart and Maldonado, along with Officer Kevin Harretos, went to the apartment building on Broadway and Elm. Shortly after their arrival, the officers spoke with a man who claimed to know Hernandez. . . . [W]hen Officer Gemeinhart showed the man a photograph of Hernandez and asked if the person depicted in the photograph was Hernandez, the man responded affirmatively. When asked if he knew where Hernandez lived, the man said he lived in a second-floor apartment with a green door and added, “It’s the only apartment up there that has a green door on it.” . . . .
Based on this information, the officers entered the apartment building, climbed a flight of stairs, located the green door, and confirmed it was the only green door on the second floor. The officers also observed that the apartment building lacked typical means of identification such as mailboxes and room numbers. Officer Gemeinhart knocked on the green door and a man from inside the apartment asked, “Who is it?” . . . Officer Gemeinhart identified himself, and the man said, “Hold on a minute.” . . .The officers then heard a “shuffling around” from inside the apartment followed by silence. . . . After knocking for several minutes without receiving a response, Officer Gemeinhart told the occupant that if the door was not opened, he would kick it in. After several more minutes passed without receiving a response, Officer Gemeinhart kicked the door in and entered the apartment. Duran was standing in the entryway, and Officer Gemeinhart asked him if Hernandez was in the apartment. Duran replied, “He doesn’t live here. You can search, he’s not here,” so the officers searched the apartment and confirmed Hernandez was not there. . . . The officers did, however, observe a bag of cocaine on the bedroom window sill, along with baggies that were believed to be used as packaging material for the cocaine. The officers seized these items and placed Duran under arrest. Shortly thereafter, the officers knocked on the remaining two second-floor apartment doors. Hernandez’s aunt answered one of them (the record is not entirely clear which) and confirmed Hernandez was inside; he was arrested shortly thereafter.
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Thus, applying the standard of review adopted by the majority of the circuit courts, the question becomes whether the trial court abused its discretion when it determined the officers reasonably believed: 1) that Hernandez resided at the green-door apartment and 2) that Hernandez was at that apartment at the time the officers entered. In resolving this question, we consider the totality of the facts and circumstances within the officers’ knowledge prior to the entry.
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Here, the record indicates the unidentified man is more accurately described as a cooperative citizen than a professional informant. . . .Considering the totality of the circumstances, and particularly the information provided by the unidentified man, we conclude the officers’ belief that Hernandez resided at the green-door apartment was a reasonable one.
Regarding the second prong, whether the officers reasonably believed Hernandez was at the apartment at the time of entry, the record indicates that prior to the entry, the officers knew that Hernandez was relatively immobile because Officer Maldonado observed him in a cast and on crutches. . . . When Officer Gemeinhart knocked on the green door, a man from inside requested that Officer Gemeinhart identify himself. When Officer Gemeinhart complied, the man said, “Hold on a minute.” . . . Based on this response, the officers could have reasonably inferred the man was preparing to answer the door. Instead, the officers heard a “shuffling around” from inside the apartment and then silence. . . . For several more minutes, Officer Gemeinhart continued knocking on the door, but did not receive a response.
Courts addressing whether officers reasonably believed the arrestee was at the dwelling in question at the time of entry have observed that a reviewing court “must be sensitive to common sense factors indicating a resident’s presence,” . . . . Given Hernandez’s status as an arrestee, his relative immobility, the man’s non-responsiveness to Officer Gemeinhart’s knocks despite telling the officers minutes earlier to “[h]old on a minute,” . . . and the “shuffling around” from inside the apartment, . . . the officers could have reasonably concluded that the man was Hernandez or that he was helping Hernandez hide. . . . Either way, the evidence supports a conclusion that the officers reasonably believed they would find Hernandez inside the apartment when they entered.
Having concluded the officers reasonably believed that Hernandez resided at the green-door apartment and that he was at the apartment when the officers entered, it follows that their entry was permissible pursuant to Payton and Steagald. [Footnote omitted.] Accordingly, the trial court was within its discretion when it concluded the officers’ entry did not violate the Fourth Amendment. [Footnote omitted.]
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Duran argues the officers’ entry into his apartment violated Article I, Section 11, of the Indiana Constitution. . . . “Rather than looking to federal requirements such as warrants and probable cause 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.” State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004). This “reasonableness” inquiry turns on the following non-exclusive factors: 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, 824 N.E.2d at 361. Incorporating the standard of review mentioned above, the question becomes whether the trial court abused its discretion when it concluded the officers’ entry into the apartment was reasonable pursuant to the Litchfield factors.
Turning first to the second factor, the degree of intrusion, the State concedes, and we agree, that the officers’ entry into Duran’s apartment was a substantial intrusion. . . . .
Turning next to the first factor, the degree of concern, suspicion, or knowledge that a violation has occurred, . . . such an inquiry translates into whether the officers had reasonable grounds to believe Hernandez resided at the green-door apartment. However, given our conclusion above that the officers reasonably believed that Hernandez resided at the green-door apartment and that he was there when the officers entered, this factor favors a finding that the officers’ conduct was reasonable.
Regarding the final factor, the extent of law enforcement needs, we note, as mentioned above, that the officers initially received a response from the man inside the apartment that suggested he was preparing to open the door, but the officers then heard some “shuffling around” followed by silence. . . . Thereafter, the man was unresponsive to Officer Gemeinhart’s repeated knocks. . . . [T]his case would be in “a very different search and seizure posture” had the man simply not responded to the officers’ knocks or told them to go away because “[a]ttendant to [the common courtesy of opening the door] is the ability to exclude those who are knocking and preserve the integrity of the physical boundaries of the home,” Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998). The man’s subsequent conduct, however, gave rise to reasonable concern on the officers’ part that he was Hernandez or that he was attempting to hide Hernandez.
. . . Given the conspicuous nature of the man’s conduct in response to the officers’ knocks, we cannot say the officers’ entry was inconsistent with safety, security, and protection from crime. Accordingly, the officers’ needs favor a finding that their conduct was reasonable.
Applying the Litchfield factors, we are left with a substantial intrusion on the one hand, and, on the other hand, a reasonable belief on the officers’ part that Hernandez was at the green-door apartment at the time of entry and conduct that was consistent with law enforcement needs. Because these factors in their totality favor a finding that the officers’ conduct was reasonable, we cannot say the trial court abused its discretion when it concluded such conduct did not violate Article I, Section 11.
BAILEY, J., concurs.
DARDEN, J., dissents with written opinion:
When I review the uncontradicted evidence (that there were no exigent circumstances, and the particulars concerning Hernandez and why he was being sought) and the substantial conflicts in the testimony of the officers, I cannot find that the totality of the circumstances justify the officers’ entry of Duran’s apartment. . . . .
In its argument to the trial court, the State asserted that entry was warranted because Hernandez might be escaping, or destroying evidence – such as keys, or documentation, or tools. However, it is undisputed that Duran’s apartment was on the second floor, and the officers knew that Hernandez had a full cast and required two crutches to move about — thereby limiting his ability to escape from a second floor apartment. Further, I cannot find the possible destruction of evidence related to a charge of auto theft is so paramount as to supersede the longstanding history of Fourth Amendment protection against the invasion of one’s own home.
Finally, I cannot accept that there was consent by Duran to the officers’ search for Hernandez once they were inside – given the uncontradicted evidence that his door had just been kicked in, and all three officers had their guns drawn. I note that Gemeinhart, the lead officer and in charge of the officers’ efforts to serve the arrest warrant, apparently did not believe any consent by Duran was needed. Gemeinhart testified that “after [he] had broken the door down, with enough understanding that [he] believed the subject was inside, we were going to search anyway for the subject that was wanted on the arrest warrant or that we had an arrest for.” . . . .
I appreciate the majority’s careful attention to precedent in reaching the result it has. However, I am deeply troubled by testimony indicating that police officers believe that when the resident of a dwelling does not open a door, after having simply heard the announcement that “police” are outside, the officers may kick in that door to gain entry. My reading of the facts presented to the trial court in this case lead me to strongly believe that Duran’s motion to suppress should have been granted.