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Watkins v. State

Court of Appeals of Indiana

January 6, 2017

Mario Deon Watkins, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Vanderburgh Circuit Court The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1412-F2-5337

          ATTORNEY FOR APPELLANT Matthew J. McGovern Anderson, Indiana.

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana.

          BROWN, JUDGE.

         [¶1] Mario Deon Watkins appeals his convictions for two counts of possession of a controlled substance as class A misdemeanors, possession of cocaine as a level 6 felony, possession of marijuana as a class B misdemeanor, and maintaining a common nuisance as a level 6 felony. Watkins raises two issues, one of which we find dispositive and which we revise and restate as whether the court abused its discretion or erred in admitting evidence discovered as a result of a search. We reverse.

         Facts and Procedural History

         [¶2] At some point, a confidential informant told Evansville Police Detective Chris Goergen that he had observed cocaine, marijuana, and a firearm at a residence in Evansville. In the late afternoon or early evening on December 16, 2014, Detective Goergen spoke with the informant who had seen the firearm in the residence earlier that day. The informant confirmed through a photo that Watkins was the individual he saw inside the residence with narcotics and a gun.

         [¶3] On December 17, 2014, Detective Goergen completed an affidavit for a search warrant, which alleged that cocaine and other evidence was being concealed in or about the premises and curtilage located at 314 W. Illinois Street in Evansville. The affidavit alleged:

Within 48 hours of December 16, 2014, a credible and reliable confidential informant (hereinafter "CI") observed more than ten (10) grams of crack cocaine inside of 314 W. Illinois St., Evansville, IN. Your Affiant met with CI and had CI direct him to the residence in your Affiant's vehicle. Law enforcement has had prior dealings with Frederick A. Jackson (D.O.B.: 12.26.1985) at 312 W. Illinois St., Evansville, IN. CI advised that Jackson had moved from 312 W. Illinois St. to 314 W. Illinois St., Evansville, IN. As noted above in the description, 312 W. Illinois St. and 314 W. Illinois St. are both located in the same building.
During surveillance on 314 W. Illinois St., Evansville, Indiana in the early morning hours of December 17, 2014, Detectives came to determine that at least one (1) resident of 314 W. Illinois St., Evansville, IN is Mario Watkins (D.O.B.: 8.4.1985). An attempt to secure a photograph of Frederick A. Jackson (D.O.B.: 12.26.1985) for comparison proved fruitless.
With respect to CI's credibility and reliability: CI has been working with Detectives with the Evansville Vanderburgh County Joint Drug Task Force for over one (1) year. The information provided by CI has led to the arrest of numerous individuals involved in narcotics activity. The arrests made on the information provided by CI have resulted in convictions on both the federal and state level. CI has provided information that has been utilized on judicially issued search warrants. Information provided by CI has led to the seizure of multiple pounds of narcotics in the Evansville, Vanderburgh County, Indiana area.

         Confidential Exhibits at 28-29. The affidavit also alleged:

Your affiant has learned in his training and experience that persons involved in the dealing of narcotics frequently possess or carry firearms either in trade for narcotics or for protection of their narcotics dealing assets, both product and proceeds.
Your affiant speaks from personal knowledge and observation and believes that the persons giving the information contained herein speak from personal knowledge and observation and are reliable and credible in that they voluntarily relayed the above information to your affiant in the course of your affiant's duties as a law enforcement officer in an effort to aid in the investigation of this offense.

Id. at 33. The trial court granted a search warrant.

         [¶4] Detective Goergen relayed the address, the names of the persons who were possibly inside the building, and that there was a firearm and cocaine seen inside at some point the day before to the assisting investigators and the Evansville SWAT team. In the briefing, the SWAT team were informed that there was a woman and three men inside and a firearm. Evansville Police Detective Michael Gray, a member of the SWAT team, decided with other members of the team how to execute the entry into the house based on information that a gun was seen in the house within the last twenty-four hours, that there were narcotics in the house, and the criminal history of the possible suspects.

         [¶5] On December 17, 2014, Detective Goergen surveilled the house for "an hour, an hour and a half . . . give or take, 15, 30 minutes or so, " prior to executing the warrant. Transcript at 34. Another detective surveilling the property informed Detective Goergen that he had seen someone matching Watkins's description exit the house and go out to the back of the house with trash cans and then re-enter.

         [¶6] The SWAT team rode in a Lenco Bearcat that followed a patrol vehicle to the residence. At least a dozen officers were involved. Upon arrival and prior to entry, three officers and a police vehicle approached the rear of the residence and at least nine officers, most armed with assault weapons, approached the front of the residence. At 10:30 a.m., the police knocked on the residence and one of the officers announced, "Police - Search Warrant - Police - Search Warrant, " and another officer announced over a loudspeaker "Search Warrant. 314 Illinois." State's Exhibit 1 at 3:55-4:00. One second later, the SWAT team knocked down the door with a battering ram. State's Exhibit 1 at 4.01.

         [¶7] Evansville Police Officer Jacob Taylor, a member of the SWAT team, had a GoPro camera attached to his helmet and recorded the entry. He was responsible for deploying a "flash bang, " which is a diversionary device that emits a bright flash and a loud bang. Transcript at 66. He testified that he conducted a quick peek inside, which was the standard procedure, and saw a couch, a TV, and some other things that were "kind of past the couch and then just next to the couch was the floor and there wasn't anything in the floor, " and he did not see any children. Id. at 67. Detective Gray testified that he paused at the front door, "actually kind of worked the angle, as [he] was standing covering the front door [he] could see down the right wall on the right side of the room but [he] couldn't see what was to the left" and did not know who was in the room. Id. at 55. One of the officers announced: "Flash bang, flash bang, flash bang."[1] State's Exhibit 1 at 4:00-4:05. Officer Taylor set or "basically dropped" or tossed the flash bang, [2] which has a time delay of one and one-half seconds and is designed to interrupt a person's ability to observe, decide, and act, "right there at the front door, the bottom left hand corner just inside the residence." Transcript at 56, 83. The device activated six inches inside the door and emitted a "pretty loud" noise and a flash of light. Id. at 59. After the flash bang grenade was deployed, Detective Gray entered the residence and picked up a nine-month old baby crying on top of blankets in a playpen just inside and "very close to the door." Id. at 332. The room also contained a baby's car seat and a toddler's activity center in the line of sight of the front door. One of the officers moved the car seat with his foot to proceed further into the residence. Officer Taylor took the baby out of the house, handed the baby to a woman dressed in street clothes, and then returned to the house. Meanwhile, other officers smashed in the kitchen window and threw another flash bang grenade inside that filled the room with smoke and set off the smoke detectors.

         [¶8] Detective Gray encountered Watkins laying on a bed in a room towards the middle of the house. Watkins offered no resistance, and Detective Gray and Officer Kennedy detained him until the SWAT team completed clearing the house. Two other men and a woman were discovered in the back of the house. The police also broke open a locked door leading to the laundry room.

         [¶9] Before receiving his Miranda warnings and while the police were bringing him out and sitting him on the curb outside, Watkins stated that everything in the house belonged to him and that "they have nothing to do with it." Id. at 313. Detective Gray read Watkins his Miranda rights, and Watkins said that he understood his rights. Detective Goergen asked him if he had been advised of his Miranda warnings, and he again stated that everything in the house was his, that he could show him where everything was, and that he could give him information on other drug dealers in return for not taking him to jail or charging him. The police discovered narcotics and marijuana, a digital scale, a cut corner baggie, cocaine, and a .40 caliber handgun.

         [¶10] On December 19, 2014, the State charged Watkins with Count I, dealing in a schedule II controlled substance as a level 2 felony; Count II, dealing in cocaine as a level 3 felony; Count III, unlawful possession of a firearm by a serious violent felon as a level 4 felony; Count IV, dealing in a schedule IV controlled substance as a level 4 felony; Count V, dealing in marijuana as a level 6 felony; Count VI, maintaining a common nuisance as a level 6 felony; and Count VII, neglect of a dependent as a level 6 felony. On August 25, 2015, the State filed an amended Count II alleging that the offense was committed in the presence of a minor.

         [¶11] Watkins filed a motion to suppress on March 6, 2015, and an amended motion on April 13, 2015. He alleged that the seizure of the items was without lawful authority because the search was conducted pursuant to an invalid warrant, the manner of the search and execution of the warrant violated the Fourth Amendment to the United States Constitution and Article 1, Sections 11, 13, and 14 of the Indiana Constitution, and the affidavit of probable cause filed to support the issuance of the warrant was insufficient to establish probable cause. He also alleged that his statements were made without being adequately advised of his Miranda rights.

         [¶12] On May 4, 2015, the court held a hearing on Watkins's motion to suppress. Detective Goergen testified that he had worked with the confidential informant extensively over the course of sixteen to eighteen months, that the informant "by all accounts and everybody in the drug task force has been established as one of the most credible informants in the history of the drug task force, " and that the informant's information has led to the arrest of dozens of individuals and convictions. Transcript at 22. Detective Goergen also testified that, prior to the execution of the search warrant, Detective Watson was able to locate the name of Mario Watkins as being involved at 314 W. Illinois, Detective Goergen forwarded a picture of Watkins to the informant, and the informant confirmed that Watkins was the individual to whom he was referring.

         [¶13] Detective Gray testified, and 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.

         [¶14] 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 ...

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