Bradford, J.
Indianapolis Metropolitan Police Officer Maurice Shipley observed Appellee-Defendant Robert Owens walk out from behind a school late at night in a high-crime neighborhood. As Officer Shipley approached, he saw Owens put something in his mouth and tuck something into the rear of his waistband. Officer Shipley told Owens to put his hands up and then handcuffed him. By this point, Officer Shipley could smell marijuana coming from Owens. When Officer Shipley asked Owens what was going on, Owens admitted that he “just threw a half a blunt in [his] mouth.” Officer Craig Solomon arrived at around this time and noticed that Owens seemed to be reaching down into the rear of his boxer shorts. When Owens denied having anything secreted in his shorts, Officer Shipley told him that if he did not want to admit that he had hidden something in his shorts, Owens would be arrested and police would find it then.
When Officer Shipley went to his vehicle to check Owens’s identification, Owens took flight. Both officers yelled at Owens to stop and gave chase, tackling Owens on the other side of the street. During the struggle, Owens was bucking and kicking and head-butted Officer Solomon in the face. As the officers were walking Owens back across the street, he again attempted to run. When the officers tackled Owens a second time, Owens kicked Officer Solomon and bit Officer Shipley on the thigh. Both officers saw that Owens had a baggie containing a white powdery substance in his hand. Officer Shipley tased Owens twice before Owens finally became compliant.
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The State acknowledges that the time between the initial stop and the discovery of the baggie was short but argues that Owens’s voluntary criminal acts committed after the initial detention and the absence of flagrant police misconduct were sufficient to dissipate any taint. Under the facts and circumstances of this case, we cannot agree. Although the alleged cocaine was not actually discovered until after Owens’s attempted flight from and battery of the officers, the record clearly indicates that the decision to arrest Owens was made before his flight, rendering discovery of the evidence all but inevitable. Because the cocaine had all but been discovered before Owens’s flight, his actions cannot be said to have caused its discovery in any meaningful sense. Under the circumstances of this case, the causal connection between the illegal police conduct and the discovery of the cocaine was not broken.
Our result is consistent with the rationale underlying the attenuation doctrine. As this court observed in Cole v. State, 878 N.E.2d 882 (Ind. Ct. App. 2007):
Other courts in this country have held that eluding the police and resisting arrest in response to an unconstitutional stop or pat down constitute intervening acts and therefore the evidence seized incident to those intervening criminal acts will not be subject to suppression. See [State v.] Williams, 926 A.2d [340,] 349 [(N.J. 2007)] …. The point of these cases is that the law should deter and give no incentive to suspects who endanger the police, themselves, and possibly others by not submitting to official authority. See id. A defendant should not have the right to use an improper stop as justification to commit a new and distinct crime of resisting law enforcement. Id. Rather, if a defendant merely stands his ground and resorts to the court for a constitutional remedy, then the unlawful stop will lead to the suppression of the evidence. Id.
As the New Jersey Supreme Court recognized in Williams, this approach balances both the right of the people to be free from unreasonable searches and seizures and their right to be free from the dangers created by suspects who physically resist the police and provides sufficient disincentives to deter both police misconduct and criminal misconduct by suspects. Id.
Id. at 888 (some citations omitted). The result in this case neither rewards Owens for his alleged flight and battery nor the police for their illegal stop of Owens, fully satisfying the rationale behind the attenuation doctrine.
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. . . In Cole . . . there is no indication that the revolver was ever going to be discovered absent Cole’s flight, which neatly distinguishes that case from this one. Quite simply, Cole’s actions caused the revolver’s discovery, not the police misconduct, in contrast to this case, where police misconduct had already made discovery of the alleged cocaine inevitable before Owens’s actions.
BROWN, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion:
I concur with the majority’s decision to affirm the trial court’s suppression of evidence pertaining to Owens’s arrest for cocaine dealing, cocaine possession, and obstruction of justice. However, I respectfully dissent from the majority’s decision to reverse the trial court’s suppression of evidence pertaining to Owens’s battery upon and flight from Officers Shipley and Solomon. The majority writes that “[a]ll agree that evidence related to Owens’s flight from and battery of Officers Shipley and Solomon should not have been suppressed.” Slip op. at 10. By merely acknowledging and recognizing an arguable point, Owens does not make such concession. As the trial court was in the best position to assess whether Owens’s actions resulted from the officers’ exploitation of the illegal stop, I would affirm the trial court.