Hawkins v. State ( 1993 )

GIVAN, Justice,

dissenting.

I respectfully dissent from the majority opinion in this case in their holding that a warrantless search of the premises was improper.

An unpublished opinion written by Judge Sullivan of the Court of Appeals sets forth the facts as shown by the record. Immediately after a purchase of cocaine had been made at the house in question, the officer went to the door, knocked, identified himself, and asked that the door be opened. He could see a person on the other side of the door with a lit cigarette who asked what was wanted. When the officer re-identified himself and repeated his demand, the cigarette glow disappeared and the officer heard running. It was then that the door was forced open.

At trial, the officer testified that they knew from the informant that crack cocaine was in the house and that the informant had used marked bills in paying for the cocaine purchased. The officer testified that there was going and coming from the house, and he was fearful that the drugs and the marked money would disappear before a warrant could be obtained. This was ample evidence of exigent circumstances from which the trial court could determine that the warrantless search was justified.

However, the majority opinion reweighs this evidence and comes to the opposite conclusion. This is an improper invasion of the prerogative of the trial court in the weighing of evidence. This Court has repeatedly stated that it is improper for this Court to reweigh evidence on appeal. Fugate v. State (1993), Ind., 608 N.E.2d 1370.

I cannot justify reversal of this ease. I concur with the manner in which the majority opinion disposes of the other issues.