Justices Affirm Evansville SWAT Drug Arrest That Split COA

Dave Stafford fr www.theindianalawyer.com

The Indiana Supreme Court on Wednesday unanimously affirmed drug convictions against an Evansville man who challenged a “military-style” SWAT team raid on his house that turned up cocaine, marijuana and prescription painkillers. The convictions previously were reversed in a divided opinion of the Indiana Court of Appeals that was vacated when justices granted transfer.

Mario Watkins was convicted of possession of a Schedule II controlled substance as a lesser-included Class A misdemeanor, possession of cocaine as a Level 6 felony, possession of a schedule IV controlled substance as a lesser-included Class A misdemeanor, possession of marijuana as a lesser-included Class B misdemeanor, and maintaining a common nuisance as a Level 6 felony.

He was charged after Evansville police acted on a tip from a longtime informant that there were drugs and a gun in Watkins’ house. Police got a search warrant, staked out and observed the house, and developed a plan to execute the warrant. They raided the house in multiple directions using a battering ram and a “flash-bang” grenade that was deployed in a room where only a nine-month-old boy was laying under a blanket in a playpen.

A majority of a Court of Appeals panel found the search unreasonable under Litchfield v. State, 824 N.E.2d 356. The majority opinion written by Judge Elaine Brown held that law enforcement needs for a military-style assault in this case were low and the degree of intrusion unreasonably high.

But justices aligned with the COA dissent of Judge Melissa May in affirming the trial court.

“We hold that the totality-of-the-circumstances Litchfield test — a test applied hundreds of times in our courts — remains well-suited to assess reasonableness under Article 1, Section 11. See Simons v. Simons, 566 N.E.2d 551, 557 (Ind. Ct. App. 1991) (“If it ain’t broke, don’t fix it!”). Applying that test here, we find that the search warrant execution was not unreasonable,” Chief Justice Loretta Rush wrote for the court.

Under these circumstances, police noticed activity at the house consistent with drug dealing, they corroborated the informant’s tip, and they had reason to believe executing the warrant could be dangerous. The court also held that while the degree of intrusion was high, police carefully tailored their tactics.

However, the court rejected the state’s argument that “the courts should not second-guess officers,” as Rush wrote in Mario Watkins v. State of Indiana, 82S01-1704-CR-191.

“The Litchfield test continues to serve us well, so we decline the State’s invitation to replace it with an unprecedented ‘no reasonable officer’ test for search warrant executions,” Rush wrote. “Under the totality of the circumstances, the search warrant execution at Watkins’s house did not violate Article 1, Section 11 of the Indiana Constitution. And the search warrant affidavit survives our deferential Fourth Amendment review because it provided a substantial basis for the probable cause finding. We therefore affirm the trial court.”

The court also cautioned that police use of “flash-bang” grenades that have drawn rebukes from the 7^th Circuit Court of Appeals, including a judgment against Evansville police in a prior case, could spoil an investigation.

“(F) lash-bang grenades should be the exception in search warrant executions. Their extraordinary degree of intrusion will in many cases make a search constitutionally unreasonable,” Rush wrote. “And we have serious concerns about officers here setting off a flash-bang grenade when the only person in the room was a nine-month-old. Ultimately though, this search warrant execution — under Litchfield’s totality-of-the-circumstances test — did not  violate  our Constitution’s  search-and-seizure protections.”