K.C. & K.C. v. State of Indiana , 84 N.E.3d 646 ( 2017 )

FILED
Sep 08 2017, 5:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Joel M. Schumm Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.C. & K.C., September 8, 2017
Appellants-Respondents, Court of Appeals Case No.
49A04-1606-JV-1230
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn Moores,
Appellee-Petitioner. Judge
The Honorable Gary Chavers,
Magistrate
Trial Court Cause Nos.
49D09-1509-JD-1759
49D09-1511-JD-2031
Brown, Judge.
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[1] In this consolidated appeal, Ki.C. appeals the juvenile court’s true findings that
he committed delinquent acts which, if committed by an adult, would
constitute battery on a public safety official as a level 6 felony and forcibly
resisting law enforcement as a class A misdemeanor. Ke.C. appeals the
juvenile court’s true finding that he committed a delinquent act which, if
committed by an adult, would constitute resisting law enforcement as a class A
misdemeanor. Ki.C. and Ke.C. (collectively, the “Respondents”) raise three
issues which we consolidate and restate as whether the juvenile court abused its
discretion in admitting certain evidence due to violations of the Respondents’
rights under Article 1, Section 11 of the Indiana Constitution. We affirm.
Facts and Procedural History
[2] On September 24, 2015, Indianapolis Public Schools Police Department
(“IPSP”) Officers John Dunker and Christopher Caldwell were on duty at
Arsenal Technical High School when Officer Dunker received a radio call
about a possible stolen phone. He proceeded to Allen Hall, and faculty
member Tony Henderson told him that a female student’s “Windows phone”
had been stolen and that no one had left the classroom and no one had
reentered.1 Transcript at 4. Officer Dunker proceeded to conduct pat-down
searches of the students who were in the classroom by taking one student at a
1
We note that this statement was admitted for the limited purpose of showing why Officer Dunker took the
actions he did when he arrived in the classroom.
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time out into the hallway and patting down the students’ exterior clothing.
Soon after, Officer Caldwell arrived to assist with the searches.
[3] After patting down at least one student and not finding the phone, Officer
Dunker re-entered the classroom and “was greeted by [Ki.C.] yelling, he is not
f------ touching me. He is not touching me, he is not searching me.” Id. at 10-
11. Officer Dunker patted down another student, then came to Ki.C. who
remained seated and stated that he would not allow Officer Dunker to search
him. Officer Dunker asked Ki.C. to stand, and he refused to do so. After
Officer Dunker moved the desk, Ki.C. stood, took his jacket off, and began to
walk away, Officer Dunker placed his hand on Ki.C.’s shoulder, and Ki.C.
“threw his arm back in an aggressive manor [sic] . . . .” Id. Officer Dunker
went to grab Ki.C., who then balled his fist and swung it at Officer Dunker
several times. Officer Dunker then placed Ki.C. on a ledge in the back of the
classroom, and Ki.C. punched Officer Dunker in the ribs with his fist and with
a limestone-based trophy. At that point, Officer Dunker took Ki.C. to the
ground.
[4] Ke.C., who is Ki.C.’s twin brother, observed Ki.C. and Officer Dunker on the
ground, and Officer Caldwell prevented Ke.C. from moving toward them.
Ke.C. tried to evade Officer Caldwell, but he was taken to the ground by the
officer. During this encounter, Officer Caldwell believed that Ke.C. was hitting
him in the leg. Officer Caldwell attempted to place Ke.C. in handcuffs, but
Ke.C. kept avoiding the handcuffs by moving his arms and trying to pull away.
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Eventually, both Ki.C. and Ke.C. were placed in handcuffs and escorted by the
officers to the IPSP office on the Arsenal Tech campus.
[5] On September 25, 2015, the State alleged Ki.C. to be a delinquent child for acts
constituting the following crimes if committed by an adult: Count 1, battery
against a public safety official as a level 6 felony; Count 2, battery by bodily
waste as a level 6 felony; Count 3, battery against a public safety official as a
level 6 felony; Counts 4 and 5, intimidation as level 6 felonies; and Count 6,
resisting law enforcement as a class A misdemeanor. On November 13, 2015,
the State alleged Ke.C. to be a delinquent child for committing two counts of
resisting law enforcement which would be class A misdemeanors if committed
by an adult.
[6] On March 14, 2016, the juvenile court held a consolidated fact-finding hearing
for Ki.C. and Ke.C. Early in the testimony of Officer Dunker, defense counsel
asked preliminary questions and made an oral motion to suppress the evidence
of the events that occurred after the attempted pat-down search. Defense
counsel asked Officer Dunker about the myIPS Student Code of Conduct, and
Officer Dunker testified that “these rules are not necessarily over us,” that the
officers “operate by our own standard operating procedure,” and that “we are
separate from the school rules.” Transcript at 6. After having him read certain
provisions contained in the Code of Conduct regarding personal technology
devices such as smartphones and student searches, defense counsel moved to
suppress his testimony as follows:
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The Officer acting in the capacity of a member of the State in his
role as a policeman overstepped his authority; in fact, violated
both of my client’s [sic] Constitutional rights to be free from
unlawful searches and seizures. . . . We would ask that
everything that occurred after the officer had the idea that he was
going to search everyone in the classroom be suppressed and that
in fact may result in a dismissal of the charges against both of
these boys.
Id. at 8-9. The court denied the motion. Counsel again objected during Officer
Caldwell’s testimony, citing his previous argument, which the court overruled.
The court also admitted into evidence as Respondents’ Exhibit A the myIPS
Student Code of Conduct, which includes provisions regarding personal
technology devices such as smartphones and student searches.
[7] The court found Ki.C. delinquent on Counts 1 and 6 for acts which would
constitute battery on a public safety official as a level 6 felony and resisting law
enforcement as a class A misdemeanor for his actions involving Officer Dunker
and entered findings of not true on the other four counts. The court found
Ke.C. delinquent on one count of resisting law enforcement, which would be a
class A misdemeanor if committed by an adult, for conduct related to Officer
Caldwell, and entered a not true finding on the other count. The court entered
dispositional orders placing both juveniles on probation.
Discussion
[8] The issue is whether the juvenile court abused its discretion in admitting certain
evidence due to violations of the Respondents’ rights under Article 1, Section
11 of the Indiana Constitution. The admission and exclusion of evidence is a
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matter within the sound discretion of the trial court, and we will review only for
an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An
abuse of discretion occurs “where the decision is clearly against the logic and
effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.
2001). “[T]he ultimate determination of the constitutionality of a search or
seizure is a question of law that we consider de novo.” Carpenter v. State, 18
N.E.3d 998, 1001 (Ind. 2014).
[9] Before addressing the merits of the Respondents’ arguments, we note the State
asserts that the Respondents have waived the issue for failure to make a
sufficient contemporaneous objection at the fact-finding hearing. The
Respondents state that the issue is properly preserved and that, if this court
decides otherwise, it must address the issue as one of ineffective assistance of
counsel.
[10] “In order to preserve a claim of trial court error in the admission or exclusion of
evidence, it is necessary at trial to state the objection together with the specific
ground or grounds therefor at the time the evidence is first offered.” Mullins v.
State, 646 N.E.2d 40, 44 (Ind. 1995) (citations omitted). “Failure to state the
specific basis for objection waives the issue on appeal.” Id.; see also Lewis v.
State, 755 N.E.2d 1116, 1122 (Ind. Ct. App. 2001) (“Failure to make a
contemporaneous objection to the admission of evidence at trial results in
waiver of the error upon appeal.”); G.J. v. State, 716 N.E.2d 475, 478 (Ind. Ct.
App. 1999) (“Where a defendant fails to object to the introduction of evidence,
makes only a general objection, or objects only on other grounds, the defendant
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waives the suppression claim.”) (quoting Moore v. State, 669 N.E.2d 733, 742
(Ind. 1996), reh’g denied)).
[11] During the testimony of Officer Dunker, defense counsel objected and moved
to suppress his testimony, arguing that “[t]he Officer acting in the capacity of a
member of the State in his role as a policeman overstepped his authority; in
fact, violated both of my client’s [sic] Constitutional rights to be free from
unlawful searches and seizures.” Transcript at 8. He made a similar objection
during the testimony of Officer Caldwell. Although defense counsel did not
specifically mention Article 1, Section 11 of the Indiana Constitution, the
objection was based upon the Respondents’ right to be free from unlawful
searches and seizures, which is language contained in that constitutional
provision. Based on defense counsel’s objections, and recognizing that
“whenever possible,” this Court “prefer[s] to resolve cases on the merits instead
of on procedural grounds like waiver,” Hale v. State, 54 N.E.3d 355, 359 (Ind.
2016) (quoting Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)), we conclude
that the Respondents’ arguments on appeal are not waived.
[12] Article 1, Section 11 of the Indiana Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
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[13] Although its text mirrors the federal Fourth Amendment, we interpret Article 1,
Section 11 of our Indiana Constitution separately and independently. Robinson
v. State, 5 N.E.3d 362, 368 (Ind. 2014). “When a defendant raises a Section 11
claim, the State must show the police conduct ‘was reasonable under the
totality of the circumstances.’” Id. (quoting State v. Washington, 898 N.E.2d
1200, 1205-1206 (Ind. 2008), reh’g denied). In general, “[w]e consider three
factors when evaluating reasonableness: ‘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. (quoting Litchfield v. State, 824 N.E.2d
356, 361 (Ind. 2005)).
[14] The Respondents argue that the officers violated their rights under Article 1,
Section 11 of the Indiana Constitution by performing a pat-down search of all
students in the classroom, arguing there was no suspicion that they had been
involved in the purported theft, the degree of intrusion was significant, and the
extent of law enforcement needs was minimal. The Respondents acknowledge
that, in C.P. v. State, 39 N.E.3d 1174 (Ind. Ct. App. 2015), trans. denied, another
panel of this Court adopted the new-crime exception to the exclusionary rule,
and they urge us “not to follow C.P. and instead hold the new-crime exception
does not apply to challenges under Article 1, Section 11.” Appellant’s Brief at
14. The State responds that the school-initiated search was reasonable under
Article 1, Section 11, and that the officers acted reasonably when attempting to
conduct the pat-down search of the Respondents. The State further argues that
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the Respondents committed acts constituting new offenses within the new-
crime exception to the exclusionary rule as set forth in C.P.
[15] Even assuming the search of the Respondents was not reasonable under the
totality of the circumstances, the trial court properly admitted the challenged
evidence under the new-crime exception to the exclusionary rule as discussed in
C.P. In that case the State alleged C.P. was a delinquent child for committing
what would be level 6 battery against a public-safety official if committed by an
adult. 39 N.E.3d at 1177. On appeal, this Court found that C.P. was seized
because a police officer had placed his hand on C.P.’s shoulder to escort him off
church property and concluded the seizure was illegal under the Fourth
Amendment and under Article 1, Section 11 of the Indiana Constitution. Id. at
1178-1179. We observed that many federal and state courts have applied the
new-crime exception to the exclusionary rule under the Fourth Amendment
and noted Professor LaFave’s discussion of the new-crime exception in his
treatise:
On occasion, when the police conduct an illegal arrest or an
illegal search, this will prompt the person arrested or subjected to
the search to react by committing some criminal offense. He
might attack the arresting or searching officer, flee from that
officer, attempt to bribe him, threaten the officer with harm
should he testify against him, attempt to destroy evidence, or
make some criminal misrepresentation in an effort to bring the
incident to a close.
Id. at 1180 (quoting 6 Wayne R. LaFave, SEARCH & SEIZURE: A TREATISE ON
THE FOURTH AMENDMENT § 11.4(j) (5th ed. 2012) (footnotes omitted)). The
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Court stated that it “appears to be a nearly universal rule in American
jurisdictions that when a suspect responds to an unconstitutional search or
seizure by a physical attack on the officer, evidence of this new crime is
admissible [under the Fourth Amendment] notwithstanding the prior
illegality.” Id. at 1180-1181 (quoting State v. Lusby, 146 Idaho 506, 198 P.3d
735, 738 (Idaho Ct. App. 2008), rev. denied).
[16] The C.P. Court then noted that the focus of the exclusionary rule under the
Indiana Constitution is the reasonableness of police conduct, and that, although
Indiana’s exclusionary rule is different from the Fourth Amendment’s
exclusionary rule, Indiana courts recognize the good-faith exception to the
Fourth Amendment’s exclusionary rule under the Indiana Constitution. Id at
1182. The Court observed that, although in some cases the Indiana
Constitution confers greater protections to individual rights than the Fourth
Amendment affords, “the Indiana Constitution does not compel a different
result here,” that “the rationale that the other federal and state courts have cited
in applying the new-crime exception to the Fourth Amendment’s exclusionary
rule is equally applicable to the Indiana Constitution,” and that, “if evidence
that defendants committed new and distinct crimes in response to illegal
searches or seizures by law enforcement were inadmissible, then defendants
could attack or shoot arresting officers without risk of prosecution.” Id. at 1183.
The Court further stated that, “[a]s the Seventh Circuit explained in [United
States v.] Pryor, [32 F.3d 1192 (7th Cir. 1994),] ‘An exclusionary rule that does
little to reduce the number of unlawful seizures, and much to increase the
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volume of crime, cannot be justified,’” id. (quoting Pryor, 32 F.3d at 1196), and
that “[s]uch a rule cannot be justified under the Indiana Constitution either.”
Id. at 1184. The Court held that the new-crime exception applies to Indiana’s
exclusionary rule and, because the juvenile court properly admitted evidence
that C.P. battered the officer after he was illegally seized, affirmed C.P.’s
adjudication. Id.
[17] In this case, we conclude that the Respondents’ actions, which included
violence against officers, constituted new and distinct crimes and thus that the
evidence of those crimes is admissible pursuant to the new-crimes exception
notwithstanding any illegality of the pat-down search. The trial court did not
abuse its discretion in admitting evidence of the Respondents’ new crimes.
Conclusion
[18] For the foregoing reasons, we affirm the juvenile court’s true findings for the
Respondents.
[19] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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