FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY D. STANTON GREGORY F. ZOELLER

Logansport, Indiana Attorney General of Indiana

ANDREW FALK

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

J.K., )

)

Appellant-Defendant, )

)

vs. ) No. 66A03-1306-JS-220

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE PULASKI CIRCUIT COURT

The Honorable Michael A. Shurn, Judge

Cause No. 66C01-1203-JS-1

April 29, 2014

OPINION - FOR PUBLICATION

ROBB, Judge
2

Case Summary and Issue

J.K. appeals the juvenile court’s adjudication of J.K. as a delinquent based on acts 

of illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal 

consumption of alcohol. He raises one issue for our review: whether the trial court 

admitted evidence against J.K. in violation of his rights under the Fourth Amendment to 

the United States Constitution, where law enforcement officers entered J.K’s curtilage, 

conducted a knock and talk lasting approximately one hour, and entered the residence 

without a warrant. Concluding the officers’ entry onto J.K.’s curtilage, their lengthy knock 

and talk, and eventual residential entry were unreasonable searches under the Fourth 

Amendment, we reverse. 

Facts and Procedural History1

In the early hours of December 22, 2011, the Pulaski County Sheriff’s Department 

received a complaint regarding a disturbance in the vicinity of Decker Drive in Winamac, 

Indiana. The complainant informed law enforcement that a number of juveniles were 

pushing a shopping cart through the neighborhood, making noise, and causing dogs to bark. 

Winamac Police Department Officers Brian Gaillard and Mark Hoffman were dispatched 

and arrived at J.K’s residence at approximately 1:11 a.m. Shortly after, Pulaski County 

Sheriff’s Department Reserve Deputy John Haley arrived on scene. The officers observed 

several vehicles parked outside the residence, one of which was a pickup truck with a 

shopping cart in the bed of the truck. The officers suspected the cart had been stolen from 

 

1

 We heard oral argument in this case on March 7, 2014 at DePauw University. We commend 

counsel for their advocacy and thank the faculty, staff, and students at DePauw for their participation and 

hospitality. 
3

an Alco store, which was approximately a mile away. A check on the truck’s license plate 

revealed that the truck belonged to a person who Officer Hoffman knew lived elsewhere. 

Officer Hoffman knocked on the front door. In the meantime, Officer Gaillard and 

Officer Haley went through the yard around either side of the residence to ensure that no 

one attempted to flee from a back exit. No one answered the door, but Officer Hoffman 

observed persons moving around inside and peeking through the blinds. When Officer 

Haley entered the back yard and approached the back door, he was able to see through a 

window and observed over a dozen empty beer cans and wine cooler bottles on the kitchen 

counter. Officer Haley went to the front to inform Officer Hoffman of the empty alcohol 

containers, and when he returned to the back of the house minutes later, he discovered that 

someone inside the residence had removed the cans and bottles from view. 

After ten or fifteen minutes without a response from the occupants, Officer Gaillard 

called for a tow truck to impound the pickup truck that contained the shopping cart. For 

an additional forty minutes after calling for the tow, the officers remained on the front 

porch and in the back yard. Officer Hoffman continued to knock at the front door and yell 

inside, instructing the occupants to answer the door and telling them the truck would be 

towed. Officer Gaillard spoke on the phone with a deputy prosecuting attorney, who told 

him not to impound the pickup truck. The tow truck arrived at 2:04 a.m., before Officer 

Gaillard had an opportunity to cancel the tow. 

Upon arrival of the tow truck, seventeen-year-old T.T., who owned the pickup truck, 

opened the front door of the residence and stepped outside. T.T. exhibited signs of 

intoxication, including slurred speech and an odor of alcohol. The officers told T.T. to 
4

retrieve the owner of the residence, and J.K., also seventeen years old, came to the door. 

J.K.’s eyes were bloodshot. When J.K. came to the door, he was on the phone with his 

mother, who owned the residence. J.K.’s mother was over an hour away but was on her 

way home. Officer Gaillard spoke with J.K.’s mother, and the officers then entered the 

residence without a warrant and before J.K.’s mother arrived at the home. 

The officers performed a search of the residence and found additional evidence of 

underage drinking, including a number of alcoholic beverage containers. Additional 

persons found in the residence were all under the age of eighteen, and several of them had 

alcohol on their breath. 

On March 6, 2012, the State filed a delinquency petition, alleging J.K. committed 

illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal 

consumption of alcohol, all Class C misdemeanors. 

J.K. filed a motion to suppress, and a hearing was held on that motion on November 

26, 2012. On December 24, 2012, the trial court issued an order denying J.K.’s motion to 

suppress. Specifically, the trial court concluded the officers’ entry into the residence was 

justified under the “protective sweep exception” to the Fourth Amendment’s warrant 

requirement. Appellant’s Appendix at 18. Furthermore, the trial court noted that there was 

conflicting testimony given as to whether J.K.’s mother gave consent to enter the residence, 

but the trial court did “not need to reach any conclusion in relation to consent.” Id. 

A fact finding hearing was held on March 6, 2013, and J.K. was found to be a 

delinquent child. J.K. filed a motion to correct error, which the trial court denied. On May 

20, 2013, the trial court entered its dispositional order. This appeal followed. 
5

Discussion and Decision

J.K. argues that evidence was admitted at his fact finding hearing in violation of his 

rights under the Fourth Amendment to the United States Constitution. Three warrantless 

entries merit discussion in this case: (1) entry onto J.K.’s curtilage by Officer Gaillard and 

Officer Haley; (2) the nearly hour-long span during which the officers remained on J.K.’s 

front porch and yard, knocking and yelling into the house; and (3) the officers’ entry into 

J.K.’s residence. We will address each of these warrantless entries below.

I. Standard of Review and the Fourth Amendment

Because J.K. brings this appeal following his fact finding hearing, rather than as an 

interlocutory appeal of the denial of his motion to suppress, we review this appeal as a 

challenge to the trial court’s admission of evidence at the fact finding hearing. Clark v. 

State, 994 N.E.2d 252, 259-60 (Ind. 2013). A trial court’s decision to admit or exclude 

evidence is reviewed for an abuse of discretion. Young v. State, 980 N.E.2d 412, 417 (Ind. 

Ct. App. 2012). A trial court abuses its discretion when its decision is clearly against the 

logic and effect of the facts and circumstances or when the trial court has misinterpreted 

the law. Id. The constitutionality of a search is a question of law, which we review de 

novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013). Similarly, determinations of 

reasonable suspicion and probable cause are reviewed de novo. Myers v. State, 839 N.E.2d 

1146, 1150 (Ind. 2005). When a defendant challenges a warrantless search, it is the State’s 

burden to prove the search fell within an exception to the warrant requirement. Clark, 994 

N.E.2d at 260.

The Fourth Amendment to the United States Constitution guarantees: 
6

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, and 

no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.

It is a basic principle of Fourth Amendment law that “searches and seizures inside a home 

without a warrant are presumptively unreasonable.” Kentucky v. King, 131 S.Ct. 1849, 

1856 (2011) (citation omitted). In addition, the Supreme Court has held that the curtilage—

the area “immediately surrounding and associated with the home”—is “part of the home 

itself for Fourth Amendment purposes.” Florida v. Jardines, 133 S.Ct. 1409, 1414 (2013) 

(quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). Thus, warrantless entry onto 

one’s curtilage is also presumptively unreasonable. However, the Court has said that this 

presumption may be overcome because the “ultimate touchstone of the Fourth Amendment 

is reasonableness. Accordingly, the warrant requirement is subject to certain reasonable 

exceptions.” King, 131 S.Ct. at 1856 (citations and quotation marks omitted). Among 

these recognized exceptions is the existence of exigent circumstances. Id. In this appeal, 

it is the State’s position that the officers’ warrantless entries onto J.K.’s curtilage and into 

his home were justified by exigent circumstances.2

 

2

 In denying J.K.’s motion to suppress, the trial court stated the officers’ entry into the residence 

was justified as a protective sweep. However, context indicates that the trial court likely meant exigent 

circumstances, and the protective sweep doctrine would not justify the officers’ warrantless entry in this 

case. Compare Maryland v. Buie, 494 U.S. 325 (1990) (discussing protective sweep doctrine) with

Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (discussing exigent circumstances exception to warrant 

requirement). On appeal, the State does not argue the protective sweep doctrine applies. 
7

II. Curtilage Entry

First, J.K. argues Officer Haley and Officer Gaillard’s entry onto J.K’s curtilage, 

particularly his back yard, violated the Fourth Amendment. The State maintains the 

officers’ entry onto J.K.’s curtilage was reasonable and justified by exigent circumstances. 

As an initial matter, law enforcement officers are not strictly prohibited from 

entering a person’s curtilage. It is generally accepted that law enforcement officers enjoy 

a limited invitation to approach a home through ordinary routes of ingress and egress open 

to visitors. See Jardines, 133 S.Ct. at 1415-16. Officers who are not armed with a warrant 

may knock on a door and request to speak with an occupant. Id. “This implicit license 

typically permits the visitor to approach the home by the front path, knock promptly, wait 

briefly to be received, and then (absent invitation to linger longer) leave.” Id. at 1415. 

During such an occurrence, “the occupant has no obligation to open the door or to speak.” 

King, 131 S.Ct. at 1862.

Conduct that occurs on one’s curtilage that is beyond a traditional “knock and talk” 

is subject to Fourth Amendment protection. The Supreme Court has provided that 

determining the extent of a home’s curtilage should be done with reference to four factors: 

(1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is 

included within an enclosure surrounding the home, (3) the nature of the uses to which the 

area is put, and (4) the steps taken by the resident to protect the area from observation by 

people passing by. United States v. Dunn, 480 U.S. 294, 301 (1987). With those factors 

in mind, we must determine whether “the area in question is so intimately tied to the home 
8

itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment 

protection.” Id. 

Those portions of J.K.’s property on which Officer Haley and Officer Gaillard 

intruded, including the sides of the house and the back yard, are curtilage under the 

protection of the Fourth Amendment. This area was immediately adjacent to J.K.’s home, 

and Officer Haley was only a few feet away from the house and back door. Testimony 

indicated that the front door was the common means of access to the house, and the back 

door was “never” used to enter the house. Transcript at 321. There was no evidence of a 

sidewalk or other means of ingress or egress that would indicate the sides and back of the 

house were open to visitors. Moreover, the owners of the residence had taken steps to 

secure privacy in this area: the back yard was enclosed by a privacy fence and a row of 

pine trees. When Officer Haley and Officer Gaillard left the front door and walked around 

to the back of the house, they were “no longer in a place where visitors could be expected 

to go.” See Divello v. State, 782 N.E.2d 433, 439 (Ind. Ct. App. 2003), trans. denied. 

The State’s reliance on Traylor v. State, 817 N.E.2d 611 (Ind. Ct. App. 2004), trans. 

denied, is misplaced.3 In Traylor, this court held that officers who approached the front 

and rear doors of a mobile home during an investigation were in places where visitors of 

the mobile home would be expected to go. Id. at 616. Whether a portion of the curtilage 

is open to visitors is a fact-specific inquiry. See Dunn, 480 U.S. at 300-03. Contrary to 

the State’s apparent interpretation, Traylor does not stand for the proposition that the back 

 

3

 The State also cites VanWinkle v. State, 764 N.E.2d 258 (Ind. Ct. App. 2002), trans. denied, 

which the court in Traylor described as having “identical” facts. Traylor, 817 N.E.2d at 616. 
9

yard and rear entry to every home in Indiana are open to any stranger who happens upon 

them. 

The State argues that the entry onto J.K.’s curtilage, if otherwise impermissible, was 

justified by exigent circumstances. Specifically, the State maintains the officers’ entry onto 

J.K.’s curtilage was necessary to guard against fleeing suspects. Indeed, “[p]olice officers 

may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.” 

King, 131 S.Ct. at 1856 (citing United States v. Santana, 427 U.S. 38, 42-43 (1976)). Hot 

pursuit of a fleeing suspect has been recognized as a circumstance where “the exigencies 

of the situation make the needs of law enforcement so compelling that the warrantless 

search is objectively reasonable under the Fourth Amendment.” Brigham City, Utah v. 

Stuart, 547 U.S. 398, 403 (2006) (citation and quotation marks omitted). Contending that 

such an exigency existed, the State cites two cases: Snellgrove v. State, 569 N.E.2d 337 

(Ind. 1991) and Hardister v. State, 849 N.E.2d 563 (Ind. 2006). Neither case truly supports 

the State’s argument, and no exigency existed such that it was necessary for the officers to 

enter J.K.’s curtilage. 

In Hardister, officers received an anonymous tip that two persons armed with guns 

were “cooking drugs” at their residence. 849 N.E.2d at 568. The officers went to the front 

porch and knocked on the door. Id. Two men appeared at a window near the door and 

made eye-contact with the officer who knocked. Id. The officer flashed his badge, 

identified himself as a police officer, and asked the suspects to open the door. Id. Then, 

the officers heard running and saw the two men fleeing to the rear of the residence. Id. 

Believing the men were attempting to escape, the officers followed a sidewalk around the 
10

side of the house to the back door. Id. The court in Hardister held the officers’ warrantless 

entry onto the curtilage was justified by their reasonable belief that they were in pursuit of 

suspects attempting to flee from the back of the residence. Id. at 572. 

The facts in Hardister and this case are worlds apart.4 Here, the officers did not 

witness anyone running toward the back of the residence. In fact, Officer Haley and Officer 

Gaillard did not even know whether there were persons inside the residence before they 

entered the back yard. There was no objective evidence indicating that anyone was fleeing 

from the back of the residence. 

Additionally, the Supreme Court has said that “some element of a chase will usually 

be involved in a ‘hot pursuit’ case.” Santana, 427 U.S. at 42 n.3. Officer Haley and Officer 

Gaillard’s encroachment onto J.K.’s curtilage—to guard against the possibility that 

someone may attempt to flee, without any evidence to support this belief—did not involve 

an element of a chase. 

In sum, the officers’ warrantless entry onto J.K.’s curtilage was not justified by 

exigent circumstances. Therefore, we conclude that entry violated J.K.’s Fourth 

Amendment right to be free from unreasonable searches. Thus, evidence obtained as a 

result of that violation—namely, the sight of empty alcoholic beverage containers—and 

any suspicion resulting from that evidence is tainted and subject to the exclusionary rule. 

Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).

 

4 Snellgrove is also no help to the State. There, the court held that a warrantless entry into the 

defendant’s home was not justified by exigent circumstances. Snellgrove, 569 N.E.2d at 341. Specifically, 

the court found there was “no evidence in the record . . . that supports the State’s assertion that appellant 

was likely to take flight to escape arrest.” Id. In that sense, Snellgrove is similar to the present case.
11

III.Knock and Talk and Unlicensed Physical Intrusion on Protected Curtilage

Next, J.K. contends the officers in this case violated J.K.’s Fourth Amendment 

rights by engaging in an unconstitutional knock and talk. J.K. maintains that the officers’ 

presence at the home and continually knocking for approximately one hour without an 

answer from an occupant exceeded their implied invitation to knock and talk. See Jardines, 

133 S.Ct. at 1415-16. Essentially, we consider whether conduct that may begin as a valid 

knock and talk may devolve into an unlicensed physical intrusion on a protected area, 

resulting in an unconstitutional search. See id. at 1415-18; see also United States v. Jones, 

132 S.Ct. 945, 949-53 (2012) (holding a physical intrusion—or “trespass”—on protected 

property may constitute an unconstitutional search). 

This is an interesting issue, but it is one on which there is little binding authority. 

The Supreme Court in Jardines described the implied invitation to knock and talk as the 

license to do “no more than any private citizen might do.” Jardines, 133 S.Ct. at 1416 

(citation omitted). As noted above, this limited invitation “permits the visitor to approach 

the home by the front path, knock promptly, wait briefly to be received, and then (absent 

invitation to linger longer) leave.” Id. at 1415 (emphasis added). This statement implies 

that a failure to leave after a brief period exceeds the implied invitation to enter one’s 

curtilage and would violate the Fourth Amendment. Indeed, Jardines held that law 

enforcement’s use of trained drug dogs on the defendant’s front porch violated the Fourth 

Amendment; that holding is based on the idea that such conduct was not encompassed by 

the implied invitation to approach portions of the curtilage. Id. at 1416-17.
12

Discussing the law enforcement’s unconstitutional search in Jardines, the Supreme 

Court explained how a conventional knock and talk may be distinguished from an 

unconstitutional search and that the nature of the police conduct is central in determining 

whether that conduct conforms to social norms:

An invitation to engage in canine forensic investigation assuredly does not 

inhere in the very act of hanging a knocker. To find a visitor knocking on the 

door is routine (even if sometimes unwelcome); to spot that same visitor 

exploring the front path with a metal detector, or marching his bloodhound 

into the garden before saying hello and asking permission, would inspire 

most of us to—well, call the police. The scope of a license—express or 

implied—is limited not only to a particular area but also to a specific purpose.

Id. at 1416 (footnote omitted). 

Further, it is well-established that “the occupant has no obligation to open the door 

or to speak.” King, 131 S.Ct. at 1862. “When the police knock on a door but the occupants 

choose not to respond or to speak, the investigation will have reached a conspicuously low 

point . . . .” Id. (citation and quotation marks omitted). Additionally, the Indiana Supreme 

Court has stated that “[i]f residents exercise this right, officers generally must leave and 

secure a warrant if they want to pursue the matter.” Hardister, 849 N.E.2d at 570. 

With these principles in mind, we must conclude that the officers’ conduct was an 

unconstitutional search in violation of the Fourth Amendment. The officers’ actions in this 

case extended well beyond the implied invitation to approach a citizen’s front door. The 

officers surrounded J.K.’s residence around one o’clock in the morning and repeatedly 

knocked on the door for over forty-five minutes. During that span of time, the officers 

peered through the windows and continuously yelled into the house demanding that an 

occupant answer the door. The Supreme Court has said officers may “approach a home 
13

and knock, precisely because that is ‘no more than any private citizen might do.’” Jardines, 

133 S.Ct. at 1416 (quoting King, 131 S.Ct. at 1862). There is no doubt that the officers’ 

conduct in this case went far beyond anything that would ordinarily be expected to occur 

on one’s doorstep. If three men with guns and flashlights were to surround the average 

person’s home in the wee hours of the morning, knock for over forty-five minutes, and yell 

inside demanding the occupants open the door, this situation would—like the Court noted 

in Jardines—inspire that homeowner to call the police. 

Setting aside the officers’ conduct while on the curtilage, the length of time the 

officers remained there would alone constitute a violation of the Fourth Amendment. The 

officers knocked but did not receive an answer, ostensibly because the occupants chose not 

to answer. At this time, the officers’ investigation reached a “conspicuously low point.” 

King, 131 S.Ct. at 1862. But rather than vacate J.K.’s curtilage and attempt to obtain a 

warrant,5the officers simply remained on the curtilage for an additional forty-five minutes. 

This is not permitted under the Fourth Amendment. 

[W]hen it comes to the Fourth Amendment, the home is first among equals. 

At the Amendment’s very core stands the right of a man to retreat into his 

own home and there be free from unreasonable governmental intrusion. This 

right would be of little practical value if the State’s agents could stand in a 

home’s porch or side garden and trawl for evidence with impunity . . . .

 

5

 The trial court found “the officers on the scene had access to the deputy prosecuting attorney at 

all times and never requested a search warrant to enter the residence.” Appellant’s App. at 18. 
14

Jardines, 133 S.Ct. at 1414 (citation and quotation marks omitted). When a Hoosier 

exercises his constitutional right to remain inside his home, law enforcement may not pitch 

a tent on the front porch and wait in hopes of obtaining evidence. 

Finally, the circumstances of this case present no exception to the warrant 

requirement (e.g. exigent circumstances) that would otherwise justify the officers’ decision 

to remain on J.K.’s curtilage. For the duration of the time the officers stayed at J.K.’s 

residence, they had no reason to believe that anyone inside the home was injured or in 

danger. 

At oral argument, the State claimed the officers’ continued presence on J.K.’s 

curtilage was reasonable because they believed the shopping cart in T.T.’s truck was 

stolen.6 That argument is misguided. There is no general emergency exception to the 

warrant requirement, nor does the mere existence of a crime constitute an exception. 

Hardister, 849 N.E.2d at 571 (citing Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) 

(holding the seriousness of a crime being investigated or the interests in making law 

enforcement more efficient do not justify dispensing with the warrant requirement or 

disregarding the Fourth Amendment)); see also Welsh v. Wisconsin, 466 U.S. 740, 753 

(1984) (stating “no exigency is created simply because there is probable cause to believe 

that a serious crime has been committed”). We wish to make this point loud and clear: 

suspicion of criminal activity is not an exception to the warrant requirement. 

 

6

 Alternatively, one might assume the police remained on J.K.’s curtilage based on suspicion 

arising from the sight of empty alcohol containers and their removal from view. However, such suspicion 

could not justify remaining on the curtilage because the information was obtained by way of an 

unconstitutional search. 
15

Moreover, even if the shopping cart were relevant, we do not believe the officers 

had probable cause to believe the shopping cart was stolen. The officers’ only reason for 

suspicion was the sight of a shopping cart labeled “Alco” in the bed of T.T.’s truck. But 

there is nothing inherently illegal about owning a shopping cart—as opposed to a patently 

illegal substance such as cocaine—nor was there anything about this particular shopping 

cart that signaled its possession was obviously illegal.7 Without some additional evidence 

that the cart was stolen or that a local grocery store had recently reported a cart stolen, the 

officers’ mere suspicion that a theft had occurred did not rise to the level of probable cause. 

Here, the officers acted without any identifiable exception to the warrant 

requirement. We hold the officers’ lengthy trespass and their conduct on J.K.’s property—

including repeated knocking and yelling into the home—amounted to an unconstitutional 

search and violated J.K.’s Fourth Amendment right to be free from unreasonable searches 

and seizures. The evidence obtained against J.K. subsequent to this violation is fruit of the 

poisonous tree and subject to the exclusionary rule. Wong Sun, 371 U.S. at 484-85. 

Because all evidence of J.K.’s guilt was obtained consequent to the Fourth Amendment 

violations, J.K.’s delinquency adjudications must be reversed.

The dissent suggests the officers’ prolonged and uninvited entry onto J.K.’s 

curtilage was reasonable because the officers were waiting for a tow truck. We cannot 

 

7

 Although shopping carts are not commonly owned by members of the general public, they may 

be obtained legally with relative ease. See, e.g., Used Shopping Carts, EBAY.COM, 

http://www.ebay.com/bhp/used-shopping-carts (last visited Apr. 21, 2014). Acknowledging ownership of 

a shopping cart is not illegal and despite a lack of evidence the cart in this case was stolen, the dissent states 

it is “willing to take notice that a substantial number of carts not on store parking lots were likely filched 

by their owners.” This is the sort of speculation that courts have long held cannot be the sole basis for 

probable cause. 
16

agree. Setting aside the absence of probable cause, the decision to impound T.T.’s vehicle 

in this case was unreasonable under the Fourth Amendment and cannot justify the officers’ 

trespass. In Fair v. State, 627 N.E.2d 427, 431-35 (Ind. 1993), our supreme court 

thoroughly discussed police authority to impound a vehicle and the means by which we 

determine the propriety of a decision to impound under the Fourth Amendment. Law 

enforcement’s ability to impound a vehicle is justified as a “community caretaking 

function” used to facilitate public safety. Id. at 431-33. The court recognized “the risk . . 

. that a decision to tow will be motivated solely by the desire to conduct an investigatory 

search” and that this was “problematic given that the community caretaking function is 

‘totally divorced from the detection, investigation, or acquisition of evidence relating to 

the violation of a criminal statute.’” Id. at 433 (quoting Cady v. Dombrowski, 413 U.S. 

433, 441 (1973)) (emphasis added). Accordingly, the approach for evaluating a police 

officer’s decision to tow a vehicle must “accommodate the multiformity of hazards with 

which they must deal and succeed in ferreting out those impoundments which are a mere 

pretext for other, improper objectives.” Id. With these principles in mind, the court held 

that to prove an impoundment was valid and warranted under the community caretaking 

exception, the State must demonstrate: “(1) that the belief that the vehicle posed some 

threat or harm to the community or was itself imperiled was consistent with objective 

standards of sound policing, and (2) that the decision to combat that threat by impoundment 

was in keeping with established departmental routine or regulation.” Id. (citations 

omitted). 
17

In this case, the State made no argument that the decision to tow was proper either 

before the trial court, in its appellate brief, or at oral argument. Regardless, the State could 

not possibly demonstrate that T.T.’s truck posed a threat to the community or that its 

removal was necessary to facilitate public safety. In Fair, the court noted the community 

caretaking function has been implicated in circumstances where “the arrest of the driver 

left his car unattended on a public highway; where the ownership of the vehicle cannot be 

established; and where the vehicle was on private property and the owner of the property 

requested removal.” Id. (citations omitted). None of those circumstances were present in 

this case, and the record does not provide any other indication that public safety required 

the truck to be towed. In fact, T.T.’s truck was merely parked in front of J.K.’s home, 

where T.T. was staying as an overnight guest.8

Far from an attempt to ensure public safety, the tow in this case was called strictly 

for what the court in Fair deemed an improper objective—namely, the desire to conduct an 

investigatory search and acquire evidence relating to the violation of a criminal statute. 

Both the probable cause affidavit and testimony by Officer Gaillard make this fact 

abundantly clear. See Child’s Exhibit A (“I advised Officer Hoffman that I believed the 

cart was stolen. I advised that I would impound the vehicle with the property inside and 

speak to the owner at a later date. . . . I asked dispatch the the [sic] next available tow due 

to the stolen property . . . . I then called Deputy Prosecutor Blair Todd and advised him . . . 

that I believed the cart was stolen and I requested a tow. Deputy Prosecutor Todd advised 

 

8

 When asked where the truck was parked, Officer Gaillard testified that it was directly in front of 

J.K.’s house and stated “I wouldn’t consider it on the road.” Transcript at 34.
18

against towing the vehicle.”); Tr. at 14 (“We decide that the cart in the truck is most likely 

stolen. . . . So I told [Officer Haley], I said, let’s just tow the truck and we’ll leave.”). In 

Fair, we were called to “ferret[] out those impoundments which are a mere pretext for other, 

improper objectives.” 627 N.E.2d at 433. But to call the decision to tow T.T.’s truck a 

“mere pretext” would imply that the officers’ motives in this case are unclear or that public 

safety was a plausible explanation. This is not such a case. The officers’ stated purpose in 

calling for the tow was to gather evidence of stolen property, and the record is utterly 

devoid of any indication that public safety was ever an issue. Even the local prosecutor 

directed the officers to cancel the tow. “An action is reasonable under the Fourth 

Amendment, regardless of the individual officer’s state of mind, as long as the 

circumstances, viewed objectively, justify [the] action.” Brigham City, 547 U.S. at 404 

(citation and quotation marks omitted) (emphasis in original). The officers’ decision to 

remain on the scene for the purpose of carrying out an illegal impoundment of T.T.’s 

vehicle is not an objectively reasonable justification under the Fourth Amendment. 9

The dissent also implies that the officers’ unconstitutional conduct did not result in 

the discovery of evidence. We cannot agree with this premise. Once Officer Hoffman 

knocked and received no answer, the officers were obliged to “leave and secure a warrant 

 

9

 We also note that waiting for a tow truck would not require the officers to continue banging on 

the door and yelling into the house for nearly forty minutes. In fact, it would not require them to remain on 

J.K.’s property at all. This is true even if the officers’ improper, subjective motivations in calling for the 

tow truck were relevant, which of course they are not. See Brigham City, 547 U.S. at 404. Furthermore, 

assuming arguendo there was probable cause to suspect a theft, a more reasonable approach would have 

been to simply lift the shopping cart from the open bed of the truck and then leave. No matter how you 

slice it, the officers’ conduct in this case was unreasonable and unjustifiable. 
19

if they want[ed] to pursue the matter.” Hardister, 849 N.E.2d at 570. They did not leave. 

The officers’ opportunity to observe and detain J.K. in his own front doorway was a direct 

result of the officers’ decision to remain on the property in violation of the Fourth 

Amendment. Had the officers conformed to the Fourth Amendment’s requirement to 

leave, we can conceive of no realistic situation in which J.K. could have been arrested.10 

As a final point, we observe the trial court found there was conflicting evidence as 

to whether consent to search the home was given by J.K.’s mother, who was not present. 

Although not an argument made before us, we believe it is worth considering whether any 

potential consent in this case was “sufficiently an act of free will to purge the primary taint 

of the unlawful invasion.” See Brown v. Illinois, 422 U.S. 590, 597 (1975) (quoting Wong 

Sun, 371 U.S. at 486). We conclude it would not be. “[S]uppression is required of any 

items seized during the search of the house, unless the taint of the initial entry had been 

dissipated before the ‘consents’ to search were given. . . . This ordinarily involves showing 

that there was some significant intervening time, space, or event.” United States v. 

Vasquez, 638 F.2d 507, 527-28 (2d. Cir. 1980). Any supposed consent given in this case 

was immediately following—or even during—the officers’ unconstitutional search, and 

such consent would have been possible only because the officers chose to remain at J.K.’s 

 

10

 We also take issue with the dissent’s suggestion that J.K.’s eventual face-to-face with the officers 

was somehow a voluntary encounter and a lawful arrest and that this event was unconnected with the 

officers’ act of knocking and yelling into the house for nearly an hour. Considering the officers’ conduct 

on the curtilage and the officers’ command for T.T. to retrieve the owner of the residence, we would 

conclude J.K. was unconstitutionally seized. See United States v. Jerez, 108 F.3d 684, 689-93 (7th Cir. 

1997) (holding defendant was impermissibly seized upon opening the door of his hotel room after officers 

knocked for three minutes). However, an in-depth discussion of whether a seizure occurred here is 

unnecessary, because our determination of an illegal search under Jardinesis more than sufficient to warrant 

reversal of J.K.’s juvenile adjudications. 
20

front doorstep for an unduly lengthy amount of time, in violation of his Fourth Amendment 

rights. Thus, there is no need to remand for a determination of the facts regarding consent, 

because any consent given by J.K.’s mother would be tainted by the unconstitutional 

invasion of J.K.’s curtilage.11

IV.Residential Entry and Exigent Circumstances

Even assuming, arguendo, that the officers’ continued presence at J.K.’s home was 

reasonable, the officers’ warrantless entry into the home was unreasonable under the Fourth 

Amendment. The State asserts two justifications for the entry: (1) the officers entered the 

home to ensure the safety of unsupervised juveniles who may have been drinking inside 

the residence and (2) to prevent the imminent destruction of evidence. 

As to the State’s first rationale, the Supreme Court has recognized that “law 

enforcement officers may enter a home without a warrant to render emergency assistance 

to an injured occupant or to protect an occupant from imminent injury.” Brigham City, 

547 U.S. at 403. The State’s assertion that the facts of this case fit within this exception is 

unconvincing. 

Prior to the officers’ entry, they were aware of the following facts: (1) T.T. had an 

odor of alcohol on his breath; (2) J.K. had bloodshot eyes; (3) both J.K. and T.T. were 

underage; (4) J.K.’s mother was not present, but the officers did not have any knowledge 

 

11

 It is also possible, given the circumstances of this case, that any alleged consent given by J.K.’s 

mother would not comply with Indiana Code section 31-32-5-1, which sets out requirements for a valid 

waiver of a child’s constitutional rights. 
21

as to whether another supervising adult was present; and (5) the officers believed there 

were more people inside the residence. 

First, the officers’ belief that other persons in the residence had consumed alcohol 

was pure speculation. The only persons the officers knew were drinking were J.K. and 

T.T., neither of whom required emergency assistance. And neither J.K. nor T.T. gave any 

indication that someone inside was injured or may be in need of emergency assistance. In 

reality, there was no objective evidence that the underage drinking that occurred in this 

case created an imminent threat of injury or death to someone inside the residence.12 

Second, the State fails to offer any argument—convincing or otherwise—that 

underage drinking is a circumstance that as a general matter creates a threat of imminent 

injury. The mere occurrence of underage drinking does not give law enforcement carte 

blanche to enter the privacy of one’s home without a warrant. Unlike other situations 

where we have found certain conduct involves inherent danger creating an exigency (e.g. 

manufacturing methamphetamine in a populated area), there is nothing so inherently 

dangerous about underage drinking that renders the imbiber subject to the threat of 

imminent injury. Cf. State v. Crabb, 835 N.E.2d 1068 (Ind. Ct. App. 2005) (finding exigent 

circumstances exist where officers have probable cause to suspect methamphetamine 

manufacturing and there is evidence that someone inside the home is subject to the threat 

 

12

 When pressed at oral argument to recount any specific evidence the police were aware of that 

established an exigency justifying warrantless entry into the residence, the State responded that T.T. had 

been drinking and the juveniles were “being irresponsible.” There is no irresponsibility exception to the 

warrant requirement.
22

of danger, because of the inherent risk of explosion), trans. denied; also Holder v. State, 

847 N.E.2d 930, 937 (Ind. 2006) (same). 

“Courts should not be reticent in enforcing the constitutional rule restricting the 

search of a person’s home without a warrant or consent, and therefore, demand a genuine 

showing of an emergency before they will excuse the police’s failure to obtain a warrant.” 

Hawkins v. State, 626 N.E.2d 436, 439 (Ind. 1993). “[T]he burden is on the government 

to demonstrate exigent circumstances that overcome the presumption of unreasonableness 

that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750 

(1984). The State has failed to meet its burden.13

The dissent states it believes the officers’ warrantless entry into J.K.’s home was 

reasonable. Without citation to authority, it offers two reasons in support of this 

position: (1) it was likely that other people were inside the house; and (2) news stories 

about the potential consequences of teenage drinking parties. These do not meet an 

exception to the warrant requirement—separately or together. First, the possible presence 

of someone else in the home means nothing, and nothing in the record suggests the officers 

had evidence those persons were in danger or even that they were drinking or 

underage. Second, reliance on the potential consequences of teenage drinking—without 

 

13

 The trial court concluded the entry was “reasonable . . . based on the concern for the safety and 

security of [the] juveniles.” Appellant’s App. at 18 (citing Rush v. State, 881 N.E.2d 46 (Ind. Ct. App. 

2008)). Rush involved an underage drinking party; however, the facts were much different. In Rush, the 

officers responded to a report of an underage drinking party. When they arrived, they observed several 

teenagers attempting to flee, and the officers entered the curtilage to detain those escaping juveniles. The 

officers in Rush also entered the residence; however, the residential entry was made with consent. 881 

N.E.2d at 52. The generic references to safety made by the court in Rush were irrelevant to the holding and 

are merely dicta. That said, to the extent Rush can be read to imply that underage drinking is an exigent 

circumstance in and of itself, we respectfully disagree. 
23

any evidence they were actually present here—is equally unavailing, because the exigent 

circumstances inquiry is fact-specific and those circumstances must be present in this 

particular case to justify warrantless entry. Missouri v. McNeely, 133 S.Ct. 1552, 1559 

(2013) (“To determine whether a law enforcement officer faced an emergency that justified 

acting without a warrant, this Court looks to the totality of circumstances . . . [T]he factspecific nature of the reasonableness inquiry demands that we evaluate each case of alleged 

exigency based on its own facts and circumstances.”) (citations and quotation marks 

omitted). Simply stated, the likelihood of occupants in a home and a vague anecdotal 

reference to a potential worst-case-scenario effect of underage drinking does not amount 

to objective evidence producing a need to enter the home to prevent imminent injury or 

death in this case.14

Alternatively, the State argues the officers’ entry was permissible to prevent the 

destruction of evidence. An exigency justifying warrantless entry exists when there is a 

need to “prevent the imminent destruction of evidence.” Brigham City, 547 U.S. at 403.

 

14

 The dissent also implies J.K.’s adjudications could be affirmed without evidence obtained from 

the residential entry, stating the entry was reasonable “but it need not be so in order for us to resolve this 

appeal.” In other words, the dissent believes J.K’s adjudications could be affirmed solely based on J.K.’s 

detention on the front porch and the observation of J.K.’s bloodshot eyes. Where constitutional error occurs, 

a conviction may not be affirmed unless the State can show “beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 23-24 

(1967). That burden would not be met here. Prior to the residential entry, no admissible evidence existed 

proving J.K. was in possession of alcohol, and J.K.’s bloodshot eyes could not sustain his adjudication for 

illegal possession. See Lawson v. State, 803 N.E.2d 237, 242-43 (Ind. Ct. App. 2004) (holding where only 

evidence was odor of alcohol and an empty container, convictions for both illegal consumption and illegal 

possession violated Indiana’s Double Jeopardy Clause), trans. denied. Further, all evidence that J.K. aided 

illegal consumption (i.e. alcohol containers and juveniles in the home under the influence) was obtained by 

way of the officers’ warrantless residential entry. 
24

However, this argument is based on Officer Haley’s observation of empty alcohol 

containers that were later removed from view by someone inside the residence. That 

observation was made during Officer Haley’s unconstitutional invasion of J.K.’s curtilage, 

and thus, that fact cannot justify the officers’ warrantless entry. Wong Sun, 371 U.S. at 

484-85.

Any concern for dissipation of alcohol in the juveniles’ blood would also fail to 

support a claim of exigent circumstances in this case. Whether such an exigency exists is 

based on the totality of the circumstances, and the natural dissipation of alcohol in the 

bloodstream is not a per se exigency. McNeely, 133 S.Ct. at 1556 (holding the dissipation 

of alcohol is not a per se exigency allowing a warrantless blood draw in drunk driving 

investigations). Here, the officers did not even know whether there were additional 

juveniles in the house who had been drinking. Further, the need to obtain quick results for 

an adult suspected of driving under the influence does not necessarily translate to a case 

involving juveniles, where the presence of any alcohol in the bloodstream is illegal; thus, 

law enforcement officers have additional time to secure incriminating evidence against an 

underage drinker. See id. at 1559 (stating exigent circumstances exist only when there is 

“no time to secure a warrant”). And lastly, all three of J.K.’s offenses in this case were 

Class C misdemeanors. The relatively minor nature of the offenses weighs against finding 

an exigency based on any potential destruction of evidence. See Welsh, 466 U.S. at 753 

(holding “an important factor to be considered when determining whether any exigency 

exists is the gravity of the underlying offense for which the arrest is being made”). 
25

Finally, we note that the act of detaining or arresting J.K. and T.T. outside the home 

would not provide a legal basis for a subsequent warrantless entry into the home. Put 

simply, under these circumstances, doctrines such as “search incident to arrest” and 

“protective sweep” would not justify warrantless entry into J.K.’s home. See Chimel v. 

California, 395 U.S. 752 (1969) (holding warrantless search of defendant’s home was not 

justified as a search incident to arrest); cf. also Maryland v. Buie, 494 U.S. 325 (1990)

(discussing protective sweep doctrine). This is true even if we were to assume the search 

that occurred on J.K.’s property and resulting arrest were legal—a point against which we 

are in steadfast opposition.

Conclusion

We conclude the officers’ warrantless entry on J.K.’s curtilage, including both the 

sides of the house and back yard, violated the Fourth Amendment. Further, we hold the 

officers’ presence at the home and continually knocking for approximately one hour 

without an answer from an occupant exceeded their implied invitation to knock and talk 

and constituted an unreasonable search in contravention of the Fourth Amendment. 

Finally, we would also conclude the officers’ warrantless residential entry was 

unconstitutional. All evidence against J.K. was obtained consequent to these constitutional 

violations. Accordingly, his adjudications must be reversed. 

We reverse. 

CRONE, J., concurs.

SHEPARD, S.J., dissents with separate opinion.
26

IN THE

COURT OF APPEALS OF INDIANA

J.K., )

)

Appellant-Defendant, )

)

vs. ) No. 66A03-1306-JS-220

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

)

SHEPARD, Senior Judge, dissenting.

J.K.’s lawyer places two assertions before us. He says one officer unconstitutionally 

entered his backyard, and he claims the officers stayed too long at his property and knocked on 

his door too many times.

My reaction to these two points is that the officer’s stay in the backyard produced no 

evidence supporting the juvenile finding that is being appealed, and that the continued knocking 

is not what led the juveniles inside ultimately to step outside, visibly impaired from drinking.

My take on the events that gave rise to this proceeding, viewed favorably to the trial 

court’s judgment as the standard for appellate review demands, is rather different than the way 

the majority sees the facts.

The Winamac Police Department dispatched officers just after 1 a.m. to investigate a 

complaint that juveniles were pushing a shopping cart around the neighborhood, making enough

noise to provoke dogs to bark at an hour when most people are trying to sleep. 

The officers quickly observed a gathering of vehicles near 412 Decker Drive, including a 
27

pickup truck visibly containing the offending shopping cart. This cart was labeled with the name 

of a store about a mile away. Transcript at 12-15. While the majority relies on the idea that there 

is nothing inherently illegal with owning a shopping cart, I’d be willing to take notice that a 

substantial number of carts not on store parking lots were likely filched from their owners.

As the majority observes, the officer who initially knocked on the front door could hear 

multiple people inside and see them peering through the blinds. The officer who went around to 

the back yard could see beer cans and wine bottles on the kitchen counter.

When no one answered the front door, the officers decided to tow the truck containing the 

apparently stolen shopping cart. Most of the time the police remained on the scene consisted of 

waiting for the tow truck to arrive, something like forty minutes.

The Court’s decision to reverse the delinquency finding rests substantially on (1) the long 

period that one officer occupied the back yard, (2) the many times the officer in front knocked on 

the door, and (3) the length of the period officers remained on the scene waiting for the tow.

I agree that there was little justification for a long occupation of the back yard. On the 

other hand, very little of consequence occurred as a result. Even after seeing the beer and wine 

through the kitchen window, the police did not take any particular action other than to remain in 

place, and there is abundant evidence of J.K.’s offenses even if what had been seen in the kitchen 

were held inadmissible.

The same can be said for the repeated knocks at the front door. None of these produced a 

response from the occupants, and the police stayed outside.

What happened next was that the tow truck arrived and the owner of the pickup, 

seventeen-year-old T.T., decided to come out and look after his interests. He opened the front 

door and stepped outside, visibly intoxicated. Transcript 19-20. The officers asked T.T. to 

summon the owner of the residence, and seventeen-year-old J.K. appeared, his eyes bloodshot. 
28

Transcript 22.

The trial judge concluded that the officers, having seen T.T. and J.K. in this state, were 

warranted in entering the home to assure the safety of the other occupants. It seemed highly 

likely there were other occupants in light of the large number of cars parked out front, and we 

read almost daily about the sad consequences of teenage drinking parties.

I am inclined to think Judge Shurn was right about the reasonableness of the officers 

entering the home, but it need not be so in order for us to resolve this appeal. 

I conclude that the police were reasonable to wait for the tow truck, and reasonable to 

effect arrests once T.T. and J.K. appeared at the door of the home, noticeably under the 

influence.