The pushback continues. Add Indiana to the list of states where citizens are pushing back and courts are saying enough already with law enforcement's continued application of over the top military tactics and equipment in routine search warrant executions. Just last week in Watkins v. State, Ind.App.January 06, 2017--- N.E.3d ---- the Indiana Court of Appeals added its voice to the growing chorus of jurists who think law enforcement has lost its perspective on how much force is appropriate when conducting routine drug search warrants. For too long in this country law enforcement, flush with post-911 anti-terrorism money and programs where they can apply for used military equipment from the armed services, have been adopting the tactics and acquiring increasingly lethal implements of war. The problem then becomes they must justify the existence of the equipment with their use, on civilians, which is what they did in Watkins.
The facts in Watkins were that police officers used military-style assault tactics to execute a search warrant on defendant's home. The pre-raid surveillance failed to identify a nine month of baby in the residence despite baby seat and other child items in their line of sight. Although the police did announce their presence, 2 seconds before using battering ram on door and then tossing flash bang grenade into front room that contained only nine-month old baby in playpen.
The Indiana Court of Appeals held the manner in which the warrant was carried out was unreasonable under totality of circumstances, and thus violated the state constitutional prohibition on unreasonable searches and seizures, even though there was a considerable degree of suspicion based on information from confidential informant regarding drugs and gun in home; extent of law enforcement needs for military-style assault was low and degree of intrusion was unreasonably high, particularly in light of deployment of flash bang grenade very close to baby. However the mere recitation of the facts does not quite capture the flavor of the police officers mentality in the case. Perhaps the following exchanges from the trial transcript helps:
"...when asked if he recalled the criminal history of the occupants, he answered: “No I don't, I mean I think there was some sort of drug history and a violent act but I can't say for sure.” Id. at 51. He testified that he did not toss the flash bang into the residence but that “whoever is charged with ensuring that they deploy [a distraction] device is also charged with ensuring that they deploy it into a safe area” and that “you wouldn't want to throw it on any children, you wouldn't want to throw it if there was a meth lab, flammable's [sic], bond [sic] making materials, different things like that, so it is the job of the operator that's actually deploying the device to do the quick peek to check.” Id. at 63. He also acknowledged that the flash bang could catch a carpet on fire." Watkins at *4.
"Officer Taylor testified that he had been with SWAT for eight years and that before he deploys a flash bang and as the door is breached “there's a quick peek, a lot of things were [sic] looking for, people, kids, elderly, smells, and then it gets placed there at the threshold.” Id. at 66–67. When asked if he believed that he complied with the safety protocol, Officer Taylor testified: “Yes, even more so than our standards are.” Id. at 73. He also stated that the SWAT team carries a fire extinguisher." Emphasis added by this writer.
The state then argued that the evidence should still come in despite the unreasonable search in violation of the Indiana state constitution under the inevitable discovery doctrine.
The court wrote "...the inevitable discovery exception has not been adopted as a matter of Indiana constitutional law. Ammons v. State, 770 N.E.2d 927, 935 (Ind.Ct.App.2002), trans. denied. The Indiana Supreme Court has held that “our state constitution mandates that the evidence found as a result of [an unconstitutional] search be suppressed.” Brown v. State, 653 N.E.2d 77, 80 (Ind.1995). See also Grier v. State, 868 N.E.2d 443, 445 (Ind.2007) (“Evidence obtained as a result of an unconstitutional search must be suppressed.”). Despite the State's request, we are not inclined to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court's firm language. See Gyamfi v. State, 15 N.E.3d 1131, 1138 (Ind.Ct.App.2014) (declining to adopt the inevitable discovery rule as part of Indiana constitutional law in light of the Indiana Supreme Court's firm language in Brown ), reh'g denied; Ammons, 770 N.E.2d at 935." Watkins, Supra at *9.
Clearly there is a growing disconnect between the public's and law enforcement's views as to reasonable force and the judicial branch is using the general unreasonableness in the way a search warrant is executed as a check upon executive branch excess (i.e. excessive use of force by law enforcement).
