Joshua Albritton v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 23 2020, 10:41 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James C. Spencer Curtis T. Hill, Jr.
Dattilo Law Office Attorney General
Madison, Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Albritton, June 23, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2928
v. Appeal from the
Jefferson Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Michael J. Hensley, Judge
Trial Court Cause No.
39D01-1901-F6-45
Vaidik, Judge.
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Case Summary
[1] Joshua Albritton appeals the trial court’s denial of his motion to suppress. We
affirm.
Facts and Procedural History
[2] Albritton and C.T. have a child together, K.A. On October 23, 2018, the
Jefferson Circuit Court issued an ex parte order for protection prohibiting
Albritton from “harassing, annoying, telephoning, contacting, or directly or
indirectly communicating with” C.T. Appellant’s App. Vol. II p. 37. In
addition, Albritton was “ordered to stay away from the residence” of C.T. Id.
The order expires October 23, 2020.
[3] On January 6, 2019, C.T. found a package on the doorstep of her house and
took it inside. When the package started to “buzz,” she took it back outside and
called the police. Tr. p. 6. Madison Police Department Officer Daniel Slygh
responded to the call and observed that the package had a card that read:
“Please just let him have this. I will never bad mouth you to him. I swear. I just
want to love my son.” Id. Officer Slygh opened the package and found a drone
and cell phone inside. The cell phone had missed calls from “Dad.” Id. at 7.
[4] Five days later, on January 11, Officer Slygh went to Albritton’s townhouse.
His unit shared a concrete porch with the neighboring unit, and a sidewalk led
away from the porch. Ex. 1. When Officer Slygh knocked on Albritton’s door, a
female answered. After a brief conversation, the female asked Officer Slygh not
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to take Albritton to jail. Officer Slygh said he wasn’t there to arrest Albritton
but rather to “interview” him. Tr. p. 9. Officer Slygh asked the female to get
Albritton. After waiting about ten minutes, Officer Slygh returned to his patrol
car. At about the same time, Albritton opened the door, looked around, and
went back inside. As the door closed, Officer Slygh called out to Albritton and
“walked up to the porch.” Id. Albritton opened the blinds on the door, and the
two “spoke through the door.” Id. Officer Slygh told Albritton he “was there
merely to discuss the situation, supplement [his] report and send it” to the
prosecutor’s office. Id. at 9-10. Albritton, however, said he didn’t believe the
officer. After the two had “words,” Officer Slygh said he was “just going to go
ahead and file for [an arrest] warrant.” Id. at 10. When Officer Slygh got about
halfway to his car, Albritton opened the door, stepped onto the porch, and
yelled at Officer Slygh he was a “liar” and there to arrest him. Id. When Officer
Slygh responded that he “was there to follow up on the invasion of privacy
from his child’s mother,” Albritton exclaimed, “You want to take me to jail for
trying to stay in my son’s life.” Id. Believing that Albritton “admitted” to
violating the protective order, Officer Slygh decided to arrest him for invasion
of privacy. Id. at 15. Officer Slygh—who was on the sidewalk—approached
Albritton—who was on the porch—and told him he was under arrest. Id. at 10,
16. When Officer Slygh “went to take custody” of Albritton, Albritton “pulled
away,” went back inside his house, and closed the door. Id. at 10; see also id. at
16 (Officer Slygh testifying that he had his “hands on [Albritton] when he
pulled away”). Officer Slygh opened the door, entered Albritton’s house, and
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arrested him. According to Albritton, when Officer Slygh entered his house,
Officer Slygh tackled him on the stairs. Id.
[5] The State charged Albritton with Class A misdemeanor invasion of privacy for
violating the protective order and Level 6 felony resisting law enforcement. The
resisting charge alleges that Albritton knowingly or intentionally forcibly
resisted, obstructed, or interfered with Officer Slygh while he was lawfully
engaged in the execution of his duties and that Albritton injured Officer Slygh
(injury to his left-forearm tendon) while committing the offense. Appellant’s
App. Vol. II p. 10. The charging information, however, does not specify
whether the resisting charge is based on what occurred on the porch or inside
Albritton’s house.
[6] Albritton filed a motion to suppress, which provides:
2. Defendant was arrested . . . following a search and seizure
resulting from an unlawful, warrantless entry into Defendant’s
residence by law enforcement.
3. Any information from the unlawful entry was unlawfully
obtained because of the absence of any warrant or any exception
to the warrant requirement.
4. The entry into Defendant’s residence and the resulting search
and seizure violates the Fourth Amendment and Article 1,
Section 11 of the Indiana Constitution.
WHEREFORE Defendant requests that all evidence obtained as
a result of the unlawful, warrantless entry into Defendant’s
residence by law enforcement [sic].
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Id. at 42. The motion to suppress doesn’t specifically identify what evidence
Albritton seeks to suppress other than “all property seized,” “all observations
made,” and “all statements made” by Albritton. Id.
[7] At the hearing on Albritton’s motion, Officer Slygh testified to the above
version of events. Albritton testified similarly, except that he said when he
opened the door, he stayed in the doorway and “never stepped out onto the
porch.” In addition, Albritton testified that once Officer Albritton entered his
house, Officer Albritton tackled him on the stairs. The trial court denied
Albritton’s motion, explaining:
8. That “A law enforcement officer may arrest a person when the
officer has . . . probable cause to believe that the person violated
I.C. 35-46-1-15.1 (invasion of privacy) or I.C. 35-46-1-15.3.”
9. That Officer Slygh had probable cause that the defendant had
violated the protective order and could therefore perform a
warrantless arrest of the defendant.
10. Officer Slygh could not, however, make a warrantless entry
into the defendant’s home to make this arrest. The testimony
differs dramatically on this issue.
11. Officer Slygh states that the defendant came outside of the
residence, stood on the porch, and made an incriminating
statement. At this time, while the defendant was still outside of
the residence, the officer advised him that he was under arrest.
12. The defendant claims he never left the inside of the residence.
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I3. The Court finds that the defendant appeared outside of his
home and cannot defeat the officer’s attempt to arrest him by
fleeing back inside[.]
Id. at 61.
[8] This interlocutory appeal now ensues.
Discussion and Decision
[9] Albritton contends that his Fourth Amendment and Article 1, Section 11 rights
were violated when Officer Slygh entered his house without a warrant.
Albritton asks us to reverse the denial of his motion to suppress and order the
dismissal of the resisting charge. Albritton’s argument assumes that the resisting
occurred inside his house, after Officer Albritton allegedly entered unlawfully.
But based on the limited information before us, it could just as easily be based
on what happened on the porch, before Officer Albritton entered his house.
Nonetheless, we will address Albritton’s unlawful-entry argument.
[10] The Fourth Amendment to the United States Constitution protects “[t]he right
of people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures.” U.S. Const. amend. IV. “A warrantless
in-home arrest is not valid without probable cause and exigent circumstances
making it impractical to first procure an arrest warrant.” Lepard v. State, 542
N.E.2d 1347, 1349 (Ind. Ct. App. 1989) (quotation omitted), reh’g denied.
Albritton doesn’t argue that Officer Slygh lacked probable cause to make a
warrantless arrest of him for invasion of privacy. See Ind. Code § 35-33-1-1.
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Rather, Albritton argues there weren’t any exigent circumstances allowing
Officer Slygh to enter his house to do so. Traditionally, exigent circumstances
have been found to exist when “a suspect is fleeing or likely to take flight to
escape arrest” or “in cases involving hot pursuit or moveable vehicles.” Lepard,
542 N.E.2d at 1349-50 (quotation omitted); see also Barnes v. State, 946 N.E.2d
572, 576 (Ind. 2011) (“[O]fficers may enter the home if they are in ‘hot pursuit’
of the arrestee or if exigent circumstances justified the entry.”), adhered to on
reh’g, 953 N.E.2d 473 (Ind. 2011). In other words, “a suspect may not defeat an
arrest which has been set in motion in a public place . . . by the expedient of
escaping to a private place.” United States v. Santana, 427 U.S. 38, 43 (1976). A
home’s open doorway is a “public” place. Id.
[11] Here, Officer Slygh testified that when he got about halfway to his car,
Albritton opened the door, stepped onto the porch, and yelled at him he was a
“liar” and there to arrest him. When Officer Slygh responded that he “was there
to follow up on the invasion of privacy from his child’s mother,” Albritton
exclaimed, “You want to take me to jail for trying to stay in my son’s life.”
Based on Albritton’s admission, Officer Slygh decided to arrest him for
violating the protective order. Officer Slygh—who was on the sidewalk—
approached Albritton—who was on the porch—and told him he was under
arrest. When Officer Slygh “went to take custody” of Albritton, he “pulled
away,” went back inside his house, and closed the door. Officer Slygh opened
the door, entered Albritton’s house, and arrested him. Because Officer Slygh
started to arrest Albritton when he was in a public place, Officer Slygh properly
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followed Albritton inside his house to finish the arrest. There was no Fourth
Amendment violation.
[12] Although Article 1, Section 11 of the Indiana Constitution largely tracks the
Fourth Amendment, we interpret and apply it independently. Mitchell v. State,
745 N.E.2d 775, 786 (Ind. 2001). The reasonableness of a search or seizure
under the Indiana Constitution “turns on an evaluation of the reasonableness of
the police conduct under the totality of the circumstances.” Litchfield v. State,
824 N.E.2d 356, 359 (Ind. 2005). Those circumstances include a balance of: (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. Id. at
361.
[13] Albritton concedes that the degree of suspicion weighs in favor of law
enforcement. Appellant’s Reply Br. p. 9. However, he claims that the other
factors weigh in his favor. He argues there is no reason that Officer Slygh could
not have gotten an arrest warrant before going to his house, especially given
that five days had passed between Officer Slygh going to C.T.’s house to
investigate the alleged invasion of privacy and Officer Slygh going to his house.
Although Officer Slygh testified that he believed he had probable cause to arrest
Albritton before going to Albritton’s house, the situation developed once
Officer Slygh got there. When Albritton essentially admitted to violating the
protective order, Officer Slygh decided to arrest him right then and there, as he
was permitted to do. However, Albritton, who was on his porch, “pulled away”
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from Officer Slygh as he tried to arrest him. Officer Slygh acted reasonably by
following Albritton into his house to finish the arrest. There was no violation of
the Indiana Constitution. We therefore affirm the trial court’s denial of
Albritton’s motion to suppress.
[14] Affirmed.
May, J., and Robb, J., concur.
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