BAILEY, J.
On December 5, 2008, the Fort Wayne Police Emergency Services Team arrived at the Pointe Center Cove residence to execute a search warrant directed toward evidence of illegal drugs and weapons. “A number of people,” including Lacey and Wilkins, were present inside the residence. (Tr. 20.) Team leader Thomas Strausborger, having been advised of the criminal histories of Lacey and Wilkins, decided to execute the search warrant in a no-knock fashion for officer safety. The door was breached by means of a ramming device, and the officers announced their presence only as they “were gaining entry.” (Tr. 14.)
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Wilkins argues that Indiana Code Section 35-33-5-7 prohibits no-knock warrants in all circumstances. Alternatively, he argues that, in this case, there was insufficient justification for the officers‟ decision to dispense with the “knock and announce” rule and thus the seizure violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.5 He further argues that the appropriate remedy for the violation of his Constitutional and statutory rights is exclusion of the evidence.
In Beer v. State, 885 N.E.2d 33 (Ind. Ct. App. 2008), we considered the claim that this statutory provision requires police officers to knock and announce their presence and authority in all instances. We initially noted that Indiana Code Section 35-33-5-7 “does not expressly prohibit entry without announcing the law enforcement officer‟s authority and purpose when there are exigent circumstances or when it would be dangerous to officers or others to make such an announcement.” Id. at 42. We further observed:
Ind. Code § 35-33-5-7 is not inconsistent with the knock and announce requirements set forth in case law from both the United States Supreme Court and our state courts. Indiana courts have held that it is well settled that the knock and announce requirement under the United States Constitution and the Indiana Constitution need not be adhered to blindly regardless of the particular circumstances confronting the authorities at the time the search is to be conducted. See Davenport v. State, 464 N.E.2d 1302, 1305 (Ind. 1984).
Beer, 885 N.E.2d at 43. Ultimately, we concluded that “Indiana law supports no knock warrants under certain circumstances.”Id.
The Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement because the object of a criminal search is drugs. Richards v. Wisconsin, 520 U.S. 385, 387 (1997). Rather, “[i]n order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. at 394. The “reasonable suspicion” standard, as opposed to a probable-cause requirement, strikes the appropriate balance between law enforcement concerns at issue and the individual privacy interests affected by no-knock entries. Id.
Reasonable suspicion exists where the facts known to the officer, and the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that knocking and announcing their presence would be dangerous. Beer, 885 N.E.2d at 44, n. 10. „“This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.”‟ Id. (quoting Richards, 520 U.S. at 394-95).
Detective Kimberly Seiss testified that, prior to the execution of the search warrant at issue, she prepared for the Emergency Services Team a packet containing the criminal histories of Lacey and Wilkins. Thereby, Officer Strausborger received information that Lacey had been arrested for criminal recklessness in 1994, he had a prior warrant for a bond revocation that stated that he may be armed, and he had been convicted of dealing in cocaine. As to Wilkins, he had been convicted for armed robbery and resisting law enforcement arising from a 2001 home invasion where weapons were involved and Wilkins had fled the scene. These facts and circumstances would give rise to a “reasonable suspicion” that knocking and announcing would be dangerous to the police officers.
In some cases, the Indiana Constitution confers greater protections to individual rights than does the Fourth Amendment. . . . .
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The degree of concern that a violation had occurred was such that a search warrant had properly been issued, as previously discussed. The degree of intrusion, forcible entry with a battering ram, was strong. Likewise, the need for officer safety was strong. However, the circumstances relative to officer safety were equally present when the requesting officer obtained the search warrant. Despite the compilation of a “packet” containing the criminal histories of Wilkins and Lacey, this was not submitted to a neutral magistrate to authorize a “no-knock” warrant. Instead, the decision not to comply with the knock-and-announce rule was left in the hands of one individual, not a neutral party but one charged with serving the warrant.
When “exigent” circumstances are present, an officer may decide to dispense with the knock-and-announce requirement. See Davenport v. State, 464 N.E.2d 1302, 1305 (Ind. 1984) (explaining, “the police are not always required to give notice of their purpose if exigent circumstances exist”). Exigent circumstances exist if someone inside, aware of someone outside, engages in activity that justifies the officers in the belief that an escape or the destruction of evidence is being attempted. Id. (citing Ker v. California, 374 U.S. 23, 47 (1963) and Cannon v. State, 414 N.E.2d 578 (Ind. Ct. App. 1980)).
Here, no circumstances bearing upon officer safety or escape arose after the issuance of the warrant and before its execution. There has been no allegation of furtive movement, attempted flight, or destruction of evidence. Under the totality of the circumstances, we find the unilateral decision to dispense with the knock-and-announce rule unreasonable under Article 1, § 11 of the Indiana Constitution where the relevant facts could have been presented in application for a “no-knock” warrant.
Accordingly, we must decide whether the evidence obtained in the search should be excluded. The State urges that we follow Hudson v. Michigan, 547 U.S. 586, 590 (2006), which discussed the appropriateness of the exclusionary rule where a “no-knock” entry concededly violated the Fourth Amendment. At the outset, the Court observed that “indiscriminate application of the exclusionary rule” had been rejected, and it was applicable only when its deterrence benefits outweigh its substantial social costs. Id. at 591. The Court recognized three interests protected by the knock-and-announce rule: (1) human life and limb, (2) protection of property and (3) privacy and dignity that may be offended by sudden entry. Id. at 594. At the same time, the Court recognized, “[w]hat the knock-and-announce rule has never protected … is one’s interest in preventing the government from seeing or taking evidence described in a warrant.” Id. Finding that the interests violated had “nothing to do with the seizure of the evidence,” the Court found the exclusionary rule to be inapplicable. Id. Finally, after discussing the availability of 42 U.S.C. § 1983 suits for Fourth Amendment violations, the Court assumed “civil liability” to be an effective deterrent. [Footnote omitted.] Id. at 597.
Our Indiana Legislature has provided for a civil remedy to redress injury caused by a wrongful police entry. See Ind. Code § 35-33-5-7(e) (providing in relevant part, “A person or persons whose property is wrongfully damaged or whose person is wrongfully injured by any law enforcement officer or officers who wrongfully enter may recover such damage from the responsible authority and the law enforcement officer or officers as the court may determine.”) [Footnote omitted.] However, the fact that such a remedy exists does not preclude our suppression of evidence when the totality of the circumstances indicates that suppression is the most effective deterrent.
In this case, the criminal histories of the targeted individuals were known well in advance of the execution of the search warrant. Nonetheless, the officer seeking the warrant did not advise a neutral judicial officer of the circumstances that would arguably have supported a “no-knock” authorization. Rather, the critical decision was made by a person charged with a duty of law enforcement.
Further, it was admittedly routine and systemic for the Emergency Service Team officers, as opposed to a neutral magistrate, to decide to serve warrants in a “no-knock” manner. [Footnote omitted.] Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a “no-knock” entry. As Sergeant Strausborger explained, “no-knock” entries into a residence increase the potential for violence against police officers due to misapprehension of the circumstances by the occupants. In light of our Indiana Supreme Court’s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only “so long as they are reasonably aimed toward those concerns,” 847 N.E.2d at 940, we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.
Here, we are not concerned with a decision to disregard the “knock and announce” requirement predicated upon emerging exigent circumstances. Rather, we are concerned with an emergency response team policy that authorizes a unilateral decision to enter into a home without knocking when there has been no independent determination regarding the circumstances. As such, we find that suppression is the appropriate remedy for dealing with this Indiana constitutional violation.
MAY, J., concurs.
BARNES, J., concurs in result with opinion:
I concur that there was a “no-knock” violation here and that we ought to suppress the evidence because of that violation, notwithstanding Hudson v. Michigan. None of us wants in any way or at any time to jeopardize the safety of a police officer. However, as the majority articulately points out, there was no reason here why the officers could not have applied for a “no-knock” warrant before a neutral magistrate. All of the reasons given for the “no-knock” at the scene were known in advance, and the police encountered no other problems that would have hindered their entry.
As for whether we ought to diverge from Hudson and continue to apply the exclusionary rule for “no-knock” entries that violate the Indiana Constitution, it is well-settled that “[e]ven where an Indiana constitutional provision is substantially textually coextensive with that from another jurisdiction, . . . we may part company with the interpretation of the Supreme Court of the United States or any other court based on the text, history, and decisional law elaborating the Indiana constitutional right.” Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998). See also Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. L. Rev. 575, 586 (1989) (arguing that protection of civil liberties must come not only from the federal constitution and United States Supreme Court, but also state constitutions and state courts). Thus, Hudson does not control here. The Indiana Supreme Court adopted the exclusionary rule for violations of the Indiana Constitution well before the United States Supreme Court mandated use of the rule in the states for violations of the federal constitution in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). In 1922, the Indiana Supreme Court held, “If . . . property was secured by search and seizure under the pretext of a search warrant, which was invalid for any reason, then the property so seized could not be used as evidence against the appellant, and its admission over his objection was prejudicial error.” Callender v. State, 193 Ind. 91, 96, 138 N.E. 817, 818 (1922). . . . Adopting what could be considered the “minimum” federal standards necessarily erodes the exclusionary rule as it has been interpreted and applied by the Indiana Supreme Court. Any chink in that exclusionary armor ought to come from them.