COA Reverses Drug Convictions For Unreasonable ‘Military-Style Assault’

Olivia Covington for www.theindianalawyer.com

A “military-style assault” on an Evansville home was unreasonable, a divided Indiana Court of Appeals held Friday, reversing a man’s various felony and misdemeanor drug convictions.

In Mario Deon Watkins v. State of Indiana, 82A01-1510-CR-1624, Evansville Police Detective Chris Goergen received a tip about cocaine, marijuana and a firearm at a residence in Evansville from a confidential informant, who confirmed through a photo that Mario Deon Watkins was the individual he saw inside the residence. In December 2014, Goergen completed an affidavit for a search warrant alleging that drugs and other evidence were being concealed at the home, and the Vanderburgh Circuit Court issued a search warrant.

At least one dozen officers were involved in the SWAT team search of the home, most of whom were armed with assault weapons. At 10:30 a.m. police knocked on the door and announced themselves, and one second later, the SWAT team knocked the door down with a battering ram.

Officer Jacob Taylor deployed a flash bang, a diversionary device that emits a bright flash and loud bang, and discovered that there was a 9-month-old baby in the room. The baby was removed from the home as officers smashed in the kitchen window and deployed another flash bang.

Detective Michael Gray found Watkins lying on a bed and detained him with no resistance. The SWAT team found narcotics, marijuana, a digital scale, a cut corner baggie, cocaine and handgun in the home.

Watkins was then charged with felonies dealing in a schedule II controlled substance, dealing in cocaine in the presence of a minor, unlawful possession of a firearm by a serious violent felon, dealing in a schedule IV controlled substance, dealing in marijuana, maintaining a common nuisance and neglect of a dependent.

Watkins moved to suppress in March 2015, arguing that the seizure of the items was without lawful authority because the search warrant was invalid, the manner of the search and execution of the warrant violated his federal and state constitutional rights and that the affidavit did not establish probable cause.

The court denied Watkins’ motion to suppress, and the state filed a motion in limine arguing that evidence from a GoPro mounted on Taylor’s helmet showing that the flash bang was deployed in the same room as the baby would be “objectionable, highly prejudicial, and irrelevant.” While the court found that the means of entry into the home and the location of the individuals, including the baby, was relevant, it also found that evidence of the use of the flash bang had little or no relevance and would be more prejudicial than probative.

Watkins was found guilty of all lesser-included offenses except the possession of a firearm and neglect counts, which were dismissed. He appealed, again arguing that evidence discovered as a result of the “military-style assault” search was inadmissible because police used unreasonable force, there was little evidence that the case was a high-risk entry and that the video evidence contradicted Taylor’s testimony that he peeked into the room before deploying the grenade.

Applying the factors of Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005), Indiana Court of Appeals Judge Elaine Brown wrote in a Friday opinion that the degree of intrusion was indeed a “military-style assault,” noting that the front door was “barely opened” when the flash bang was deployed and the angle at which Taylor was standing did not allow him to see inside.

Further, Brown wrote that concerning the degree of law enforcement needs, “The record contains no evidence that law enforcement could not have safely presented the person matching Watkins’ description with the search warrant.” Thus, Brown wrote for the divided appellate panel that the search violated Watkins’ protections under Article 1, Section 11 of the Indiana Constitution.

Brown also rejected the state’s suggestion to adopt the inevitable discovery exception as a matter of Indiana constitutional law because the Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of (an unconstitutional) search be suppressed.”

The appellate panel reversed Watkins’ convictions, but Judge Melissa May dissented, writing in a separate opinion that she would hold the search of Watkins’ residence was reasonable under the totality of the circumstances.