APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Steven Rubick, Magistrate. Cause No. 49F19-1212-CM-081628.
ATTORNEY FOR APPELLANT: SUZY ST. JOHN, Marion County Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ERIC P. BABBS, Deputy Attorney General, Indianapolis, Indiana.
MATHIAS, Judge. BRADFORD, J., and PYLE, J., concur.
In emergencies, law enforcement officers are often called upon to make split-second judgments as they do the dangerous work of protecting us all, judgments that we in a civil society endeavor to support as much as possible. But when, without any exigent circumstances, and after being denied consensual entry, a law enforcement officer lies to gain entry into someone's home, is that officer " . . . lawfully engaged in the execution of the officer's duties . . ." so as to justify the arrest of the owner or renter of the home and to charge her with the crime of resisting law enforcement? We answer this question in the negative and reverse Robin Harper's Class A misdemeanor resisting law enforcement conviction.
Facts and Procedural History
On December 3, 2012, defendant Robin Harper (" Harper" ) called the police to report a domestic dispute with her husband, Christian (" Christian" ). Indianapolis Metropolitan Police Department Officer James Gillespie (" Officer Gillespie" ) responded to the call. When Officer Gillespie arrived at Harper's home, Harper met him on the street in front of her house and told him that she and Christian had been arguing and the argument escalated into a shoving match. Harper informed the officer that she was not in pain and that Christian had left the home. From previous experience, Officer Gillespie was aware that this was " an on-going issue with Miss Harper and her husband." Tr. p. 8.
Officer Gillespie then began to look for Christian. At approximately the same time, Christian called 911 and gave his location, which was two blocks away from Harper's residence. Officer Scott Hartman (" Officer Hartman" ) separately responded to Christian's 911 call. Officers Gillespie and Hartman met Christian at his location and observed that he had two small scratches on his head, a swollen left eye, and what appeared to be a small puncture wound in his abdomen. Christian told the officers that Harper had attacked him with scissors and had struck him multiple times with her fist.
The officers returned to Harper's residence intending to arrest her for domestic battery. After Officers Gillespie and Hartman returned to Harper's residence, they " attempted to make contact with Miss Harper[.]" Tr. p. 10. According to Officer Gillespie
[s]he was reluctant to come to the door, but she did come to the door, spoke to us through the door and then opened it so that the screen door was still there and closed. We asked if she could step outside to talk to us. She said that she
did not want to go outside due to the fact that it was cold. At that point in time we asked if we could step inside to speak with her and she said that we didn't need to come inside. . . . [I]n order to get a hold of Miss Harper, I then asked her if she would sign a document for a protective order, to start some kind of protective order ...