from the Tippecanoe Superior Court The Honorable Steven P.
Meyer, Judge Trial Court Cause No. 79D02-1412-F4-5
Attorney for Appellant Chad A. Montgomery Montgomery Law
Office Lafayette, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana George P. Sherman Deputy Attorney General
Ricky Johnson appeals his conviction for possession of a
firearm by a serious violent felon as a level 4 felony.
Johnson raises two issues which we consolidate and restate as
whether the trial court abused its discretion by admitting
evidence obtained pursuant to a protective sweep. We reverse.
and Procedural History
On December 7, 2014, Lafayette City Police Officer Lonnie
Charles Wilson was dispatched at 5:10 a.m. to 104 Cochise
Trail in Tippecanoe County regarding a female, Dmysia Joe,
saying someone was trying to kill her with a handgun. Joe
called the police again and informed them that she had left
and gone to a Burger King restaurant. Officer Wilson then
proceeded to the restaurant where he met Joe, a female
"about 5 foot 5'2", about 130-140 pounds."
Transcript at 108. Joe was very upset and hysterical. She
told Officer Wilson that her then-boyfriend, Johnson, had
threatened her, was intoxicated, pointed a weapon at her
head, cocked the weapon, and said that he would kill her.
Officer Wilson transported Joe to the Lafayette Police
headquarters where she gave a statement.
Joe told Officer Wilson that she left work around 10:30 p.m.
and went to her apartment to find Johnson on the bed
drinking. She said Johnson stated that he was going to go on
a run with his friend, he left with the friend, she called
Johnson repeatedly, and that "the time comes to
3:30" and Johnson finally answered and said he was
leaving. State's Exhibit 1 at 6:15. Johnson returned to
the apartment intoxicated. She stated that Johnson said:
"I'm going to go kill them. They arrested my
brother." Id. at 6:17. She also said that
Johnson told her to "go get my gun, " and that she
gave Johnson his revolver. Id. at 6:18. She said
that Johnson pointed the gun at her and said: "I'm
going to kill you bitch." Id. at 6:20. She also
told the police that Johnson took her vehicle, he was going
to hang out with a friend, he typically hangs out with his
brothers, one of his brothers was in jail, and that he hangs
out with his other brother, Deshawn Johnson. Officer Wilson
was familiar with the lengthy criminal history of Deshawn
Johnson, and "in law enforcement's view he's a
gang member of BTC." Transcript at 29. Joe said that
Johnson had made threats to other people and that he wanted
to make certain individuals pay for "putting his brother
in jail." Id. at 30. Joe's recorded
statement to the police concluded at 6:24 a.m.
While Joe was still at police headquarters, Johnson called
her cell phone, told her he was home, and demanded to know
her location and that she return to the apartment. Officer
Wilson told Joe and her mother to go to the Burger King, and
he went to the apartment. Other officers went to the
residence and heard Johnson yelling and "carrying on
through the window." Id. at 12. They also
discovered Joe's vehicle in the parking lot. The officers
were about to set up a tactical blanket based on their understanding that a person
was inside and may be armed with a handgun, when Johnson
exited the apartment. He had a phone to his ear with one
hand, locked the door with a set of keys in his other hand,
began walking toward the police, and then turned to go back
into the apartment. He "started to put the keys into the
lock to re-open the door" when police stopped him.
Id. at 14. Johnson stood there for a moment and did
not cooperate with police commands, but then he did cooperate
without resistance, and officers apprehended him in the
common hallway area of the apartment building at
approximately 7:15 a.m.
Officer Wilson "made [his] announcements with [his] K-9
asking anybody to come out, " and "nobody made any
noises inside." Id. at 27. While Johnson was
taken to a squad car, the police entered the apartment to
conduct a protective sweep observed broken glass on the
floor, a broken picture frame in the kitchen, and ultimately
a handgun on the bed in the back bedroom. The police did not
locate anyone inside the apartment. Johnson stated that he
wanted to be released, and Lafayette Police Officer Stephen
Bittles told him that the police had received a complaint
that he took a woman's car and pointed a handgun at her.
The police patted Johnson down and did not discover any
weapons. Officer Wilson contacted Joe and she came to the
scene, and the police went through the apartment with her.
Joe told Officer Wilson "there should be any of her -
nothing - no weapons would be in her house that were hers or
anything like that and she wanted them gone."
Id. at 19. The police discovered a shoebox
containing ammunition near the bed.
On December 8, 2014, Johnson called Joe from the jail and on
December 10, 2014, the State charged him with possession of a
firearm by a serious violent felon as a level 4 felony and
criminal recklessness as a level 6 felony. In January 2015,
the State added the count of intimidation as a level 5
On November 18, 2015, Johnson filed a motion to suppress
evidence alleging that the search violated his rights under
the Fourth Amendment of the United States Constitution and
Article 1, Section 11 of the Indiana Constitution. The court
held a hearing on the motion the next day. Officer Wilson
testified that Johnson turned to go back inside the apartment
and: "Then with the information I had, him possibly
having a weapon, the fear he might hurt somebody because he
had already implicated that he was out to do so, I then felt
that we needed to hurry up and make action to keep him from
going back inside the building accessing anything I
didn't see on him at the time." Id. at
13-14. When asked why he entered the apartment, Officer
With the statement given by Dmysia that it was her apartment
access she had told me that she had a weapon. He had said
that he was going to retaliate for those that tried to or did
put his brother in jail, and he threatened to kill her. And
from what she showed me his actions taken, we then did a
protective sweep of that apartment for any persons injured or
anything that might have been evidence to an injury of
another individual. And we cleared that in safety.
Id. at 15. He testified that the police did not
enter the apartment to specifically find the handgun. On
redirect examination, when asked whether he believed that
there were potentially other people inside that could pose a