Nance v. State

216 N.E.3d 464

Demarcus NANCE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 22A-CR-2581

Court of Appeals of Indiana.

Filed August 3, 2023

Attorney for Appellant: Denise L. Turner, DTurner Legal LLC, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Weissmann, Judge.

[1] 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.

[2] 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.

Facts

[3] While assisting Marion County Community Corrections officers at the home of Nance's next-door neighbor, Indiana Gun Task Force members Gregory Kessie and Sergio De Leon detected the smell of raw and burnt marijuana emanating from the area of Nance's home. After Sergeant Kessie confirmed that some of the other four to six officers present also smelled marijuana, one of the officers ran a license check on the car parked in front of Nance's home. The license plate did not match the vehicle and was not registered to either Nance or his neighbor.

[4] Sergeant Kessie and Detective De Leon decided to conduct a "knock and talk" at Nance's home. The smell of marijuana strengthened as they approached Nance's home. Detective De Leon knocked on the front door, which consisted of a glass storm door and main door behind that. Nance opened the main door and then "cracked" open the storm door with his forearm to speak to the officers. Tr. Vol. II, p. 70. At that time, the raw marijuana smell from within the home became "overwhelming" to the officers. Id. at 71. A smokey odor also was evident.

[5] Detective De Leon began questioning Nance about the vehicle parked in front of his home. Based on the marijuana smell, Sergeant Kessie asked Nance to step outside. Nance did not respond but looked over his shoulder. The officers could hear movement and other noises coming from inside the home. Sergeant Kessie opened the storm door fully and grabbed Nance's left wrist as Nance stood in the threshold. Nance stiffened and started to struggle, prompting the officers to pull him from "the threshold of the doorway" to the outside of the house to handcuff him. Id. at 89.

[6] Sergeant Kessie and other uniformed officers who had participated in the compliance check next door entered Nance's home and briefly searched it. They saw in plain view a vacuum sealer on the kitchen counter, an AR-style rifle just underneath a bed in the front bedroom, a Taurus gun box in another bedroom, and a large hydraulic press in the garage. A raw marijuana odor was present throughout the home. The officers found no one else in the home. They determined that the noise and movement they had heard earlier came from a television and a dog caged in a bedroom near the front door.

[7] Based on the marijuana smell and the items in plain sight, Detective De Leon obtained a warrant to search the home. The search revealed loose raw marijuana on a game box in the living room, a jar with raw marijuana in a bag in a bedroom closet, a kilo mold in the kitchen closet, items used to dilute narcotics, two UPS packages containing methamphetamine, and a locked case in a closet. After a second search warrant was obtained, the locked case was opened, revealing, among other things, 10 pounds of methamphetamine, two ounces of marijuana, two grams of cocaine, $23,470 in cash, three cell phones, and digital scales.

[8] The State charged Nance with Level 2 felony dealing in methamphetamine. Nance moved to suppress the evidence obtained during the searches of his home. He argued that the officers’ detention of him and warrantless search of his home were illegal so the officers’ observations during the initial search could not support issuance of the two warrants. The trial court denied Nance's multiple motions to suppress, finding the detention and searches lawful under both the Fourth Amendment to the United States Constitution and Article 1, § 11 of the Indiana Constitution.

[9] The trial court granted Nance's request to certify this case for interlocutory appeal, and we accepted jurisdiction.

Discussion and Decision

[10] Nance contends the officers’ actions took an unconstitutional turn and violated both the Fourth Amendment and Article 1, § 11 of the Indiana Constitution as soon as they grabbed him and yanked him out of his home. The officers continued on this unconstitutional path, according to Nance, by conducting an illegal protective sweep of his home and then seeking warrants based on the information they had illegally obtained through that search. Nance argues that all the evidence collected by the officers after they detained him was tainted by these constitutional violations and should be suppressed.

[11] When reviewing the denial of a motion to suppress in an interlocutory appeal, our approach likens that in sufficiency of the evidence claims. We deferentially review the trial court's ruling, construing conflicting evidence in the manner most favorable to the ruling. Robinson v. State , 5 N.E.3d 362, 365 (Ind. 2014). We "consider any substantial and uncontested evidence favorable to the defendant" but do not reweigh the evidence or judge witness credibility. Id. Any constitutional issues are reviewed de novo. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).

I. Fourth Amendment

[12] The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. The parties agree that the officers’ initial approach of Nance's home and initial questioning of him did not implicate the Fourth Amendment. See Florida v. Jardines , 569 U.S. 1, 8, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ruling that "a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do’ ") (quoting Kentucky v. King , 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ); Warren v. State , 73 N.E.3d 203, 207 (Ind. Ct. App. 2017) (ruling that a knock and talk was legitimate police business and thus did not constitute a search for Fourth Amendment purposes).

[13] The parties diverge, however, as to the legality of the officers’ actions once Sergeant Kessie opened Nance's door wider and grabbed Nance. We conclude that the Fourth Amendment did not authorize Nance's detention or any of the searches of his home that followed.

A. Detention

[14] 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. See Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (ruling that police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based on specific and articulable facts, the officer has a reasonable suspicion that criminal activity "may be afoot"). Finally, the State claims that the officers had probable cause to arrest Nance based on the smell of marijuana in his home and that exigent circumstances justified their entry into Nance's home to arrest him.

[15] 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.

i. Threshold

[16] The record refutes the State's claim that the officers did not cross the threshold of Nance's home. Sergeant Kessie testified that Nance "cracked the [storm] door just a little bit," remaining behind it. Tr. Vol. II, p. 87. Sergeant Kessie then testified that he opened the storm door wider, grabbed Nance, and "pulled him out of the threshold of the doorway " before handcuffing Nance and detaining him outside. Id. at 89 (emphasis added). Thus, Sergeant Kessie necessarily crossed the outer boundary of the home's threshold to grab Nance and pull him from the home.

[17] 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, 96 S.Ct. 2406, 49 L.Ed.2d 300 (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. Under this reasoning, the person in the threshold has knowingly exposed himself to "public view, speech, hearing, and touch" just as if he were standing in a public place, according to the State. Appellee's Br., p. 20 (quoting Santana , 427 U.S. at 42, 96 S.Ct. 2406 ).

[18] But Santana involved a home...