Weissmann, J.
After several law enforcement officers tracked a marijuana odor to Demarcus Nance’s home, the officers pulled Nance across the threshold of his home, forcibly detained him outside, and then entered his home without a warrant. Once inside, the officers observed drug paraphernalia and a gun in plain view. Only then did they seek a warrant, relying on evidence they had collected through the warrantless entry.
Nance was charged with dealing in methamphetamine based on the drug evidence seized from his home. He moved to suppress that evidence, alleging that the officers overstepped federal and state constitutional boundaries. We reverse the trial court’s denial of Nance’s motion to suppress, finding that the officers had no authority to cross the threshold of Nance’s home without a warrant and that the later searches with a warrant were tainted by the earlier illegal entries.
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Nance contends the officers first overstepped Fourth Amendment boundaries when they crossed the threshold of his home to detain him. In response, the State first claims the detention occurred without entry into the home. Even if the officers did enter the home to accomplish the detention, the State argues that they were justified by the strong smell of marijuana to which they were exposed when Nance opened his front door. The State essentially contends the “knock and talk” turned into an investigatory stop during which Nance’s detention was justified.
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We find the threshold was crossed. Terry therefore does not apply. 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.
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The State claims that even if the officers crossed the threshold to detain Nance, their warrantless entry to accomplish the detention did not run awry of the Fourth Amendment. Relying on United States v. Santana, 427 U.S. 38, 42 (1976) and United States v. Berkowitz, 927 F.2d 1376, 1386-87 (7th Cir. 1991), the State argues that a person standing in the threshold of his home is outside, rather than inside, the home for Fourth Amendment purposes.
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Not only is Berkowitz factually distinct, but it eviscerates the State’s argument that officers may cross the threshold of a home without consent to accomplish a Terry-style detention.
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Terry
Given that the officers crossed the threshold of Nance’s home, the State’s reliance on Terry also is unhelpful. The Fourth Amendment generally requires police to obtain a warrant supported by probable cause before entering a home for a search or seizure without permission.
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Thus, by opening his door to answer a knock, Nance neither abandoned his privacy interest in his home nor invited the officers knocking to enter.
Probable Cause to Arrest
The State also contends the Fourth Amendment authorized the officers’ crossing of the threshold because they had probable cause to arrest Nance based solely on the marijuana smell. In Bell, this Court found probable cause to arrest the defendant, as well as search the defendant incident to that arrest, based on a marijuana smell flowing from both the defendant and her vehicle. 13 N.E.3d at 544. 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. Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (“As Payton made plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry in a home.”); Payton, 445 U.S. at 590.
Exigent Circumstances
Even if the officers had probable cause to arrest Nance, they lacked the other ingredient necessary to justify the first warrantless entry into Nance’s home: exigent circumstances….The State claims exigent circumstances existed because any marijuana within Nance’s home likely would have been removed or disposed of before the officers obtained a warrant. The imminent destruction of evidence is a recognized exigent circumstance.
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We agree with Nance that the State failed to show exigent circumstances. In determining whether the exigent circumstances exception to the warrant requirement applies, courts review the totality of the circumstances to determine whether police “faced an emergency that justified acting without a warrant.” Missouri v. McNeely, 569 U.S. 141, 149 (2013). The State argues an emergency existed because Nance looked backward over his shoulder, the officers heard noise and shuffling or movement from within the home, and any marijuana was easily disposable. We are unpersuaded.
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Like our federal counterparts, this Court also has considered exigent circumstances in the context of a warrantless home entry based on the smell of marijuana. In Ware v. State, 782 N.E.2d 478, 483 (Ind. Ct. App. 2003), we rejected the State’s claim that exigent circumstances—specifically, the imminent destruction of evidence—authorized an officer’s warrantless entry into an apartment from which a marijuana smell was emanating.
Given these particular facts, and with the guidance of Ware, we conclude the State failed to prove that the Fourth Amendment authorized the officers’ initial warrantless entry into Nance’s home to detain him. 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.
Protective Sweep
Nance argues the officers’ second warrantless entry into his home also violated the Fourth Amendment because it stemmed from his illegal detention by the officers. Classifying this second entry as a protective sweep, the State asserts that the entry and search was justified by Nance’s “arrest” and the need to prevent the imminent destruction of evidence. We conclude that the State proved no valid exception to the warrant requirement justifying this second warrantless entry into Nance’s home.
The State improperly classifies the officers’ second entry into Nance’s home as a “protective sweep.”
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The State repeats its claim that the officers had probable cause to arrest Nance for possession of marijuana. Under the State’s reasoning, the officers’ failure to arrest Nance is irrelevant because the officers had authority to do so. We have already rejected the State’s assertion that the officers had probable cause for Nance’s arrest before they entered his home. 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.”
Probable Cause and Exigent Circumstances
Although the officers lacked probable cause to believe that Nance possessed marijuana, they arguably did have probable cause to believe Nance’s home contained evidence of criminal conduct.
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But as we noted earlier, probable cause alone is not enough to justify a warrantless search of a home. It must be joined with exigent circumstances to dispense with the warrant requirement. Cudworth v. State, 818 N.E.2d 133, 137- 38 (Ind. Ct. App. 2004). Therefore, if we ignore for purposes of this analysis any impact from the first warrantless entry, the legality of the second warrantless entry rests on the existence of exigent circumstances. See id.
We have already rejected the State’s claim that the imminent destruction of evidence justified the officers’ initial warrantless entry. That analysis equally applies to this second entry, given that the circumstances facing the officers had not changed in the short time between the officers’ detention of Nance and their search of the home. The State has therefore failed to establish that imminent destruction of evidence justified their second warrantless entry. For all of these reasons, we conclude that the second warrantless entry, like the first, violated the Fourth Amendment.
Searches Under Warrant
Nance argues that the officers obtained their first search warrant based on the evidence collected during their illegal warrantless search of his home. Accordingly, he claims “[a]ny evidence recovered as a result of the subsequently issued search warrant was fruit of the poisonous tree and should have been suppressed.” Appellant’s Br., p. 22. The State, on the other hand, asserts that probable cause to issue the warrant existed even if the observations made during the warrantless search are excluded from the search warrant affidavit. In essence, the State argues that the warrantless detention and search did not taint the search warrant or the later home search that it authorized.
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The search warrant affidavit here included information obtained during the illegal warrantless search of Nance’s home, as well as statements by Nance to police that ultimately were suppressed by the trial court due to other police misconduct. For instance, the affidavit noted that the officers observed during the warrantless search a vacuum sealer, drug press, a rifle, and a gun box. Exhs. Vol. I, pp. 9-10. The affidavit sought a warrant authorizing the officers to search for “[f]irearms and ammunition,” among other things. Id. at 11-12. The trial court issued the warrant as requested. Id. at 11-12.
The only firearm evidence known to the officers arose from their observations during the illegal warrantless search of Nance’s home. 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. 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.
And if the first search warrant was tainted, so too was the second search warrant, which was based entirely on evidence arising from the prior illegal searches. As the warrants were tainted by the police misconduct, the trial court erred in denying Nance’s motion to suppress on Fourth Amendment grounds.
Article 1, Section 11
Nance also contends his detention and the later searches of his home violated Article 1, § 11 of the Indiana Constitution.
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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.
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The degree of intrusion was also high. As “[h]ouses and premises of citizens receive the highest protection[,]” warrantless searches of a home are presumptively unreasonable.
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The extent of law enforcement needs was minimal. To be sure, police have a strong need to investigate criminal activity, including drug offenses. Corbett v. State, 179 N.E.3d 475, 487 (Ind. Ct. App. 2021), trans. denied; Austin v. State, 997 N.E.2d 1027, 1036 (Ind. Ct. App. 2013) (observing that law enforcement’s need to disrupt the illegal drug trade is significant). The officers reasonably suspected criminal activity based on the smell of raw and burning marijuana. They determined the smell was emanating from Nance’s home when he opened his front door.
That said, this strong need to investigate is tempered by the minor nature of the offense that the officers were investigating. Police had no evidence of any offense other than possible marijuana possession when they first entered Nance’s home to detain him. Possession of marijuana without enhancing circumstances is a Class B misdemeanor—one of the more minor offenses in the Indiana criminal code.
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Balancing these three Litchfield factors and considering the full context in which the search and seizure occurred, see Hardin, 148 N.E.3d at 943, we conclude that the State failed to establish the multiple searches of Nance’s home and his detention were reasonable under Article 1, § 11.
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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.
Bailey, J., and Brown, J., concur.