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Ware v. State

Court of Appeals of Indiana

May 31, 2017

Latorrea Denise Ware, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

         Appeal from the Elkhart Circuit Court The Honorable Terry C. Shewmaker, Judge Trial Court Cause No. 20C01-1412-PC-46

          ATTORNEYS FOR APPELLANT Stephen T. Owens Public Defender of Indiana Kristin M. Eichel Deputy Public Defender Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Latorrea Denise Ware appeals from the post-conviction court's denial of her petition for post-conviction relief. Ware raises two issues for our review, but we need only discuss the following issue: whether the post-conviction court erred when it concluded that Ware did not receive ineffective assistance from her trial counsel. We hold that, had Ware's trial counsel moved to suppress evidence seized by officers who had entered her home with a valid warrant but without first clearly announcing their presence, that motion would not have been successful. Accordingly, we affirm the post-conviction court's judgment that Ware did not receive ineffective assistance from her trial counsel.

         Facts and Procedural History

         [¶2] The facts underlying Ware's convictions were stated by this court on direct appeal:

In February 2012, a confidential source participated in two controlled buys of cocaine from Ware. The police used information gathered during the controlled buys to obtain a search warrant for Ware's apartment in Elkhart. On February 24, 2012, Detective Timothy Freel of the Elkhart Police Department led several officers, including some uniformed officers, in the execution of the search warrant. Detective Freel was wearing plain clothes and a black tactical vest when he knocked on the door to Ware's apartment. When someone asked who was at the door, Detective Freel responded that he was from maintenance and was there to change a furnace filter. Ware opened the door and could see Detective Freel wearing his vest and tried to shut the door. Detective Freel put his foot in the doorway, tried to identify himself as a police officer, drew his weapon, and ordered the occupants of the apartment to the ground. The police found cocaine and money used in the controlled buys in the apartment.
The State charged Ware with Class A felony dealing in cocaine, two counts of Class B felony dealing in cocaine, and Class D felony maintaining a common nuisance. A jury found Ware guilty as charged. . . .

Ware v. State, No. 20A03-1401-CR-18, 2014 WL 4116469, at *1 (Ind.Ct.App. Aug. 21, 2014) (footnote omitted) ("Ware I").

         [¶3] In her direct appeal, Ware argued that the trial court committed fundamental error when it admitted the evidence seized during the execution of the search warrant. We rejected Ware's argument as follows:

Ware contends that Detective Freel's initial false identification of himself as a maintenance man and the lack of identifying police uniform when she first opened the door violated basic principles of due process. We do not agree. There was testimony at trial that the purpose of police officers falsely identifying themselves when they execute a search warrant is to "safely get people to the door" and to avoid the destruction of evidence and people fleeing from windows. Tr. p. 194. This is consistent with Detective Freel's testimony that safety was the primary concern when they entered the apartment. He also testified that it is standard operating procedure to have weapons drawn and to order the occupants to the ground because many times drug dealers have weapons and guns. This procedure allows police officers to have total control of the situation and "make everything safe[.]" Id. at 128.
Detective Freel also testified that, when Ware opened the door, she could see he was wearing a black tactical bullet proof vest and he was trying to identify himself as a police officer. He also testified that plain clothes officers wear either a badge or a vest that says police. Further, there was testimony that the search ...

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