Latorrea Denise Ware v. State of Indiana , 78 N.E.3d 1109 ( 2017 )

FILED
May 31 2017, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Kristin M. Eichel Eric P. Babbs
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Latorrea Denise Ware, May 31, 2017
Appellant-Petitioner, Court of Appeals Case No.
20A03-1610-PC-2297
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Respondent. Shewmaker, Judge
Trial Court Cause No.
20C01-1412-PC-46
Najam, Judge.
Statement of the Case
[1] Latorrea Denise Ware appeals from the post-conviction court’s denial of her
petition for post-conviction relief. Ware raises two issues for our review, but we
need only discuss the following issue: whether the post-conviction court erred
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when it concluded that Ware did not receive ineffective assistance from her trial
counsel. We hold that, had Ware’s trial counsel moved to suppress evidence
seized by officers who had entered her home with a valid warrant but without
first clearly announcing their presence, that motion would not have been
successful. Accordingly, we affirm the post-conviction court’s judgment that
Ware did not receive ineffective assistance from her trial counsel.
Facts and Procedural History
[2] The facts underlying Ware’s convictions were stated by this court on direct
appeal:
In February 2012, a confidential source participated in two
controlled buys of cocaine from Ware. The police used
information gathered during the controlled buys to obtain a
search warrant for Ware’s apartment in Elkhart. On February
24, 2012, Detective Timothy Freel of the Elkhart Police
Department led several officers, including some uniformed
officers, in the execution of the search warrant. Detective Freel
was wearing plain clothes and a black tactical vest when he
knocked on the door to Ware’s apartment. When someone
asked who was at the door, Detective Freel responded that he
was from maintenance and was there to change a furnace filter.
Ware opened the door and could see Detective Freel wearing his
vest and tried to shut the door. Detective Freel put his foot in the
doorway, tried to identify himself as a police officer, drew his
weapon, and ordered the occupants of the apartment to the
ground. The police found cocaine and money used in the
controlled buys in the apartment.
The State charged Ware with Class A felony dealing in cocaine,
two counts of Class B felony dealing in cocaine, and Class D
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felony maintaining a common nuisance. A jury found Ware
guilty as charged. . . .
Ware v. State, No. 20A03-1401-CR-18, 2014 WL 4116469, at *1 (Ind. Ct. App.
Aug. 21, 2014) (footnote omitted) (“Ware I”).
[3] In her direct appeal, Ware argued that the trial court committed fundamental
error when it admitted the evidence seized during the execution of the search
warrant. We rejected Ware’s argument as follows:
Ware contends that Detective Freel’s initial false identification of
himself as a maintenance man and the lack of identifying police
uniform when she first opened the door violated basic principles
of due process. We do not agree. There was testimony at trial
that the purpose of police officers falsely identifying themselves
when they execute a search warrant is to “safely get people to the
door” and to avoid the destruction of evidence and people fleeing
from windows. Tr. p. 194. This is consistent with Detective
Freel’s testimony that safety was the primary concern when they
entered the apartment. He also testified that it is standard
operating procedure to have weapons drawn and to order the
occupants to the ground because many times drug dealers have
weapons and guns. This procedure allows police officers to have
total control of the situation and “make everything safe[.]” Id. at
128.
Detective Freel also testified that, when Ware opened the door,
she could see he was wearing a black tactical bullet proof vest
and he was trying to identify himself as a police officer. He also
testified that plain clothes officers wear either a badge or a vest
that says police. Further, there was testimony that the search
was conducted with uniformed officers near the door to confirm
the police presence.
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Under these circumstances, we cannot conclude that the manner
in which the search warrant was executed was the type of
egregious circumstance that warrants the application of the
fundamental error doctrine. . . .
Id. at *2.
[4] Thereafter, Ware filed an amended petition for post-conviction relief. In that
petition, Ware asserted that, had her trial counsel moved to suppress the
evidence seized, that motion would have been successful under Article 1,
Section 11 of the Indiana Constitution. As such, Ware argued, her trial counsel
rendered ineffective assistance of counsel when he failed to move to suppress
the evidence. After an evidentiary hearing, the post-conviction court rejected
Ware’s argument1 and denied her petition for relief. This appeal ensued.
Discussion and Decision
[5] Ware appeals the post-conviction court’s denial of her petition for post-
conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
(citations omitted). When appealing the denial of post-
1
We need not discuss on appeal Ware’s argument that the post-conviction court erred when it concluded
that her claim of ineffective assistance of counsel was precluded by our fundamental-error analysis in Ware I.
Further, we note that the post-conviction court did not undertake an analysis under Article 1, Section 11
when it rejected Ware’s petition. Nonetheless, we may affirm the post-conviction court’s judgment on any
theory supported by the record, Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999), and it remains Ware’s
burden to persuade this court that the post-conviction court’s judgment is erroneous, see Campbell v. State, 19
N.E.3d 271, 273-74 (Ind. 2014).
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conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. To prevail on appeal
from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[a] post-conviction court’s
findings and judgment will be reversed only upon a showing of
clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to
Campbell).2
[6] In particular, Ware argues that she received ineffective assistance from her trial
counsel:
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
2
Ware’s assertions on appeal that we should credit some portions of Detective Freel’s testimony over others,
or otherwise consider evidence other than that most favorable to the post-conviction court’s judgment, are
contrary to our standard of review, and we reject them.
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Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 274.
[7] Ware asserts that the officers who entered her house pursuant to a search
warrant violated her rights under Article 1, Section 11 because they did not first
announce that they were police officers.3 As the Indiana Supreme Court has
made clear:
This Court has long recognized that the Indiana Constitution’s
provision dealing with searches and seizures requires “that the
police knock and announce their authority before conducting a
search of a dwelling.” State v. Dusch, 259 Ind. 507, 512, 289
N.E.2d 515, 517 (1972). This requirement, however, “is not to
be adhered to blindly regardless of the particular circumstances
confronting the authorities at the time the search is to be
conducted.” Id. In Dusch, this Court noted that such
requirement may not apply when the facts present sufficient
exigent circumstances. Id. at 512-13, 289 N.E.2d at 518.
Subsequent Indiana appellate decisions have applied Dusch to
find that police should knock and announce their authority
before conducting a search; such procedure is not absolute, being
3
Ware makes no argument under the Fourth Amendment to the United States Constitution. Cf. Hudson v.
Michigan, 547 U.S. 586, 590-602 (stating that Fourth Amendment jurisprudence does not require the
exclusion of evidence following the failure of police to knock and announce). Ware also asserts that the
officers’ entry into her home violated Indiana Code Section 35-33-5-7, but she does not provide an analysis
under that statute that is independent of her analysis under Article 1, Section 11. Accordingly, we do not
separately consider it.
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subject to exigent circumstances; and reasonableness of police
conduct is the touchstone for consideration. See Moran v. State,
644 N.E.2d 536 (Ind. 1994) . . . .
In recent years, this Court has expressed that “[t]he legality of a
governmental search 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) (citing Moran, 644 N.E.2d at 539). To determine
whether a residential entry violated Article 1, Section 11, we
apply a “totality-of-the-circumstances test to evaluate the
reasonableness of the officer’s actions.” Duran v. State, 930
N.E.2d 10, 17 (Ind. 2010). A more elaborate explanation and
methodology for evaluating such reasonableness is provided in
Litchfield:
In sum, although we recognize there may well be
other relevant considerations under the
circumstances, we have explained reasonableness of
a search or seizure as turning on 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.
824 N.E.2d at 361.
Lacey v. State, 946 N.E.2d 548, 550 (Ind. 2011) (some citations omitted). In
other words, the ultimate question under Article 1, Section 11 is whether the
officers’ “decision . . . to enter without first knocking and announcing their
presence,” even when the officers have already procured a search warrant, was
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reasonable “in light of the totality of the circumstances at the time of the entry.”
Id. at 552.
[8] We cannot agree with Ware’s assertion that, had her trial counsel objected to
the admission of the seized evidence under Article 1, Section 11, the trial court
would have been required to sustain the objection and exclude the evidence
seized. First, the officers’ degree of concern, suspicion, or knowledge that Ware
had engaged in criminal activity was substantial: officers had conducted two
controlled drug buys from Ware prior to obtaining the search warrant for
Ware’s residence.
[9] Second, the degree of intrusion was minimal. On this point, we agree with the
State’s assertion that “the correct comparison is not between searching a
person’s home versus not search the home” but “between the degree of
intrusion posed by standard knock-and-announce procedures versus the degree
of intrusion in this case.” Appellee’s Br. at 18. That is, the officers here had
already secured a valid warrant to search Ware’s residence; her challenge is not
to the validity of that warrant but to the manner in which the officers executed
that warrant, namely, entering Ware’s residence without first clearly
announcing their presence. We conclude that that difference resulted in a
minimal degree of intrusion on her ordinary activities.
[10] Third, the extent of law enforcement needs was high. The officers had a valid
warrant to search Ware’s residence for drugs; the officers knew that Ware had a
prior felony conviction for dealing in cocaine; and the officers knew, based on
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their experience, that drug dealers commonly possess firearms. As such, when
Ware observed the officers’ presence and then quickly closed the door on them,
the need for the officers to secure the location and execute the warrant safely
was substantial. Thus, in light of the totality of the circumstances, the officers’
entry into Ware’s home without first clearly announcing their presence was
reasonable and not in violation of her rights under Article 1, Section 11.
[11] Finally, we reject Ware’s argument that the knock-and-announce rule under
Article 1, Section 11 may only be disposed of “when exigent circumstances
exist.” Reply Br. at 4. To be sure, Indiana’s case law frequently discusses the
disposal of that rule in those circumstances, but the Indiana Supreme Court’s
opinion in Lacey could not be more clear: the ultimate question under Article 1,
Section 11 is the reasonableness of the police action under the totality of the
circumstances. 946 N.E.2d at 550, 552. In any event, we agree with the State
that Ware’s response to seeing the officers outside her front door, coupled with
the drug-related nature of the alleged offenses, created exigent circumstances
that justified the officers’ immediate entry to secure the area and execute the
valid warrant.
[12] In sum, had Ware’s trial counsel moved to suppress the evidence under Article
1, Section 11, that motion would not have been successful. Accordingly,
counsel did not render ineffective assistance when he chose to not pursue a
motion to suppress, and we affirm the post-conviction court’s denial of Ware’s
petition for post-conviction relief.
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[13] Affirmed.
Bailey, J., and May, J., concur.
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