APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable John F. Surbeck, Jr., Judge. The Honorable Robert E. Ross, Magistrate. Cause No. 02D04-1305-CM-2508.
ATTORNEY FOR APPELLANT: CORY A. SPREEN, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; J.T. WHITEHEAD, Deputy Attorney General, Indianapolis, Indiana.
BRADFORD, Judge. BARNES, J., and BROWN, J., concur.
Fort Wayne police responded to a dispatch of an armed individual who had pointed a gun at a female and located Appellant-Defendant Georon Harris, who matched the description in the dispatch, sitting in front of an apartment at 810 Oaklawn Court ("the Apartment"). As two police officers approached, they saw Harris remove a black handgun from his
waistband, open the front door of the Apartment, place the gun on the floor just inside the door, and close the door. The officers could not see into the Apartment. After securing Harris, one of the officers opened the Apartment's door, reached inside, and retrieved the handgun from the floor. The State charged Harris with Class A misdemeanor carrying a handgun without a permit. Harris filed a motion to suppress the gun, which motion the trial court denied. Following trial, a jury found Harris guilty as charged, and the trial court sentenced him to 210 days of incarceration.
Harris contends that the entry into the Apartment to retrieve the gun violated his rights pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. This case calls upon us to examine the question of under what circumstances the presence of a firearm in the vicinity obviates the need to obtain a search warrant in order to seize it from a residence. Under the circumstances of this case, we conclude that the State has established that exigent circumstances relieved it of the need to obtain a search warrant. We also conclude that the seizure of the gun from the Apartment was reasonable pursuant to the Indiana Constitution.
FACTS AND PROCEDURAL HISTORY
At approximately 11:00 p.m. on May 30, 2013, Fort Wayne Police Officers Benjamin Miller and Nicholas Lichtsinn, both in full uniform, were dispatched to a report of an armed individual who had pointed a gun at a female and who was driving a white Bonneville. The suspect was described as a " male black in a white shirt with braid dreadlocks." Tr. p. 28. Officer Lichtsinn had just seen a white Bonneville, so he returned to the area where he had seen it and observed a white Bonneville parked near the entrance to the Chapel Oaks apartments. The Bonneville was warm to the touch, and, as Officer Lichtsinn verified that nobody was inside the vehicle, he saw Harris, who matched the description of the armed individual, sitting in front of the Apartment. Meanwhile, Officer Miller had arrived. (Tr. 49). From approximately 100 to 120 feet away, the officers observed Harris stand, remove a black handgun from his waistband, open the door of the Apartment, place the gun on the floor inside, close the door, and sit down again. The door to the Apartment had no window, and the views through all of the windows were obscured by closed blinds. The officers approached Harris, ordered him to the ground, and handcuffed him. Officer Lichtsinn opened the Apartment's door, retrieved the handgun from the floor just inside, and, in doing so, " might have gone a step into [the Apartment]." Supp. Tr. p. 24. Officer Lichtsinn noticed a teenaged female sitting on a couch inside the Apartment, approximately five feet from the gun.
On May 31, 2013, the State charged Harris with Class A misdemeanor carrying a handgun without a license. On August 20, 2013, Harris filed a motion to suppress evidence related to Officer Lichtsinn's
entry into the Apartment. On October 1, 2013, following a hearing, the trial
court denied Harris's motion to suppress. ...