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Johnson v. State

Court of Appeals of Indiana

February 28, 2017

Ricky Johnson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal 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 Indianapolis, Indiana

          Brown, Judge.

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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[1] 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.

         [¶5] 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.

         [¶6] 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 felony.

         [¶7] 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 Wilson answered:

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 ...

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