A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Matthew J. McGovern Curtis T. H ill, Jr. Anderson, Indiana Attorney General of Indiana

James B. Martin Monika Prekopa Talbot Deputy Attorneys General Indianapolis, Indiana

_______________________________________________________________ _______________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 82S01-1704-CR-191

M ARIO W ATKINS , Appellant (Defendant),

v.

S TATE OF I NDIANA , Appellee (Plaintiff).

_________________________________ Appeal from the Vanderburgh C ircuit Court, No. 82C01-1412-F2-53 37 The Honorable Kelli E. Fink, Magistrate

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-1510-CR-1624

_________________________________ October 18, 2017
Rush, Chief Justice. Evansville police executed a search warrant at Mario Watkins’s home with a flash-bang grenade, battering ram, and a dozen heavily armed SWAT officers . Once inside, they found cocaine, marijuana, and a gun. Watkins argues that the intrusiv e entry violated the Indiana Constitution and that the search warrant was unsupported by pro bable cause under the Federal Constitution.2 For the state constitutional ana lysis, we apply our well-estab lished Litchfield test and hold that Evansville police did not act unreasonably under the total ity of the circumstances. And for the federal analysis, we uphold the search warrant because its supp orting affidavit shows a substantial basis for finding probable cause. W e therefore affirm the trial court. Facts and Procedural History A long-time confidential informant saw Mario Watkins in his Eva nsville home with a gun, cocaine, and marijuana. After receiving this tip, Evansville po lice got a search warrant, surveilled the house, and decided to send in the SWAT team. The team met t o plan the warrant execution, taking into account the layout of the house, Watkins’s violent criminal history, and the danger posed by four adults with narcotics and a gun.
Soon after, twelve SWAT officers arrived at Watkins’s house in an armored vehicle. One officer bashed in the front door with a battering ram while ano ther announced the team’s presence over a loudspeaker. A third officer’s job was to use a flash-ba ng grenade—a diversionary device that emits a loud noise and bright flash of light—to distract a nyone inside. Following standard safety precautions, he did a “quick peek” into the front room t o see whether the grenade was appropriate, then deployed it six inches inside the door. 1 He did not know that a nine-month-old boy was lying under a blanket in a playpen in that room. Officers discovered the child moments after the grenade went o ff, and took him outside. They then found four adults—inclu ding Watkins—in the rest of th e house. When they arrested Watkins, he told them that eve rything in the house was his. Searching the house, officers found a plate with crack cocaine residue, digital scales, 4.2 grams of crack cocaine, 706 grams of marijuana, 35 hydrocodone pills, 21 alprazolam pills, 25 oxycodone pills, $263 in cash, and a .40 caliber Hi-Point handg un. The State charged Watkins with multiple felonies. He filed a m otion to suppress, arguing that the search warrant was uns upported by probable cause under the Fourth Amendment and that

1 The trial record indicates that police deployed a second flash -bang grenade through the kitchen window, but Watkins’s arguments at the suppression hearing and on appea l mention only the one deployed at the front door.3 its execution violated the searc h-and-seizure protections of th e Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. The trial court denied the motion. The trial court then severed the unlawful possession of a firea rm charge, and the remaining counts went to trial. The jury d eadlocked on a neglect of a dep endent charge, but found Watkins guilty of possession of a schedule II controlled substance as a lesser-included Class A misdemeanor, possession of cocaine as a Level 6 felony, possess ion of a schedule IV controlled substance as a lesser-included Class A misdemeanor, possession of marijuana as a lesser-included Class B misdemeanor, and mainta ining a common nuisance as a Lev el 6 felony. Watkins appealed, arguing that t he search warrant affidavit did not establish probable cause in violation of the Fourth Amendment and that the search warran t execution was unreasonable under Article 1, Section 11 of the Indiana Constitution. A spli t panel of the Court of Appeals reversed. The major ity found the search unr easonable under Arti cle 1, Section 11’s Litchfield test because “the extent of law enforcement needs for a military-sty le assault was low and the degree of intrusion was unreasonably high.” Watkins v. State, 67 N.E.3 d 1092, 1102 (Ind. Ct. App. 2017). Judge May dissented, as she would have found the search reasona ble under the totality of the circumstances. Id. at 11 02 (May, J., dissenting). The State petitioned for transfer , which we granted—thus vacati ng the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review Watkins challenges the constituti onality of the warrant executi on only under Article 1, Section 11 of the Indiana Constitution—an issue that we review de novo. Zanders v. State, 73 N.E.3d 178, 181 (Ind. 2017). He then challenges the sufficiency of the search warrant affid avit only under the Fourth Amendment. We likewise review de novo the trial court’s paper-r ecord decision upholding the issuance of a search warrant. Houser v. State, 678 N.E.2d 95, 9 8 (Ind. 1997). But we give “great deference” to the prior judge’s initial, underlying probable ca use finding—affirming if a “substantial basis” supported it and resolving doubtful cases i n favor of upholding the warrant. Id. at 98–99 (quoting Illinois v. Gates, 462 U.S. 213, 236–39 (1983 )).4 Discussion and Decision

I. Police Did Not Execute This Search Warrant Unreasonably Under A rticle 1, Section 11 of the Indiana Constitution. The parties agree that the method of executing a search warrant triggers our State Constitution’s protections, but they dispute the proper test fo r determining whether that method is reasonable. We hold that the totality-of-the-circumstances Litc hfield test—a test applied hundreds of times in our courts—remains w ell-suited to assess reasonable ness under Article 1, Section 11. See Simons v. Simons, 566 N. E.2d 551, 557 (Ind. Ct. App. 1991) (“If it ain’t broke, don’t fix it!”). Applying that test here, we find t hat the search warrant execut ion was not unreasonable.

A. The Litchfield test governs the reasonableness of search warrant executions. Our Indiana Constitution safeguards the “right of the people to be secure in their persons, houses, papers, and effects, aga inst unreasonable search or sei zure.” Ind. Const. art. 1, § 11. As the parties agree, a search warrant’s execution is axiomatic ally a “search,” so it trigger s Section 11’s protection. See Lace y v. State, 946 N.E.2d 548, 550 (Ind. 2011). The SWAT team’s search of Watkins’s home, then, must live up to our Constitution’s expectations—it must not be “unreasonable.” The parties disagre e on how to determine reasonableness. Watkins asks us to stick with the totality-of-t he-circumstances test we established in Litchfield v. State, 824 N.E.2d 356, 359–61 (Ind. 2005). The State argues that Litchfield shouldn’t apply to search warrant executions and proposes a new test: search warrant executions should be unreasonable only if “ no reasonable officer” would ex ecute a search that way. We agree with Watkins that the Litchfield test remains well-sui ted to assess the reasonableness of search warrant executions, making any new tes t unnecessary. This totality-ofthe-circumstances test is our “faithful stand-by” to determine reasonableness under our Constitution, Zanders, 73 N.E.3d at 186, and is appropriate for a range of contexts, see Garcia v. State, 47 N.E.3d 1196, 1199 (Ind. 2016). As we held in Litchfie ld itself, the test applies broadly to “a governmental search.” 824 N.E .2d at 359. Indeed, Litchfield governs the reasonableness of searches incident to arrest, Garcia, 47 N.E.3d at 1199; traffic stops, Robinson v. State, 5 N.E.3d 362, 368 (Ind. 2014); vehicle searches, State v. Hobbs, 933 N.E .2d 1281, 1287 (Ind. 2010); trash searches, Membres v. State, 889 N.E.2d 265, 269 (Ind. 2008); an d protective sweeps, Weddle v.5 State, 989 N.E.2d 371, 378 (Ind. Ct. App. 2013), trans. denied. In short, its application is comprehensive. Home searches are no different; we apply the Litchfield test “[ t]o determine whether a residential entry vi olated Article 1, S ection 11.” Lacey, 946 N .E.2d at 550. Litchfield accordingly governs both warrantless home en tries, Holder v. State, 847 N.E .2d 930, 940–41 (Ind. 2006), and the execution of arrest warrants at a home, Dura n v. State, 930 N.E.2d 10, 19 (Ind. 20 10). And in Lacey, we held that no-knock search warrants do not require prior judicial authorization because they are governed by the Litchfield test based on the “circumst ances at the time the warrant was served.” 946 N.E.2d at 550, 552–53. In line with Lacey, the Cou rt of Appeals—both here and in its recent Ware opinion—applied Litchfield to search warrants. Ware v. State, 78 N.E.3d 1109, 1113–14 (Ind. Ct. App. 2017), trans. denied; Watkins, 67 N.E.3dat 1102. This totality-of-thecircumstances test thus governs the reasonableness of search wa rrant executions. Even if our precedent did not cement Litchfield’s application h ere, we would still reject the State’s “no reasonable officer” test. As we recently recognized , our Constitution grants homes its “highest protection.” Carpenter v. State, 18 N.E.3d 998, 1002 ( Ind. 2014) (quoting Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994)). We cannot dial down that prot ection by isolating search warrant executions with a special, less protective test. In fact, the L itchfield test is well-suited for all searches—including warrant executions—because it looks to the t otality of the circumstances. Finally, the State’s rationale for its test—that courts should not second-guess officers— implies that judges should defer to police when analyzing an Ar ticle 1, Section 11 claim. True, we refrain from “unrealistic second-guessing,” especially when “po lice are acting in a swiftly developing situation.” Browder v. State, 77 N.E.3d 1209, 1215 ( Ind. Ct. App. 2017), trans. denied (quoting United States v. Shar pe, 470 U.S. 675, 686 (1985)). Bu t a reasonableness analysis under Article 1, Section 11 must account for more than police officer s’ judgment calls; it is a multifaceted determination that ultimately belongs to judges. See Br own v. State, 653 N.E.2d 77, 79 (Ind. 1995). So we turn now to that analysis, applying our tota lity-of-the-circumstances Litchfield

test.

B. This search warrant was not executed unreasonabl y under the totality of the circumstances. Under the Litchfield test, we assess reasonableness under the t otality of the circumstances, balancing “1) the degree of c oncern, suspicion, or knowledge th at a violation has occurred, 2) the6 degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.” Carpenter, 18 N.E. 3d at 1002 (quoting Litchfield, 824 N.E.2d at 361).

1. The degree of police suspicion. Watkins argues that police suspicion was low because little to no evidence showed that drugs were in his house. But this argument is misplaced because a valid warrant means that police had probable cause to believe that Watkins’s home contained evi dence of a crime. See Duran, 930 N.E.2d at 18; Membres, 889 N.E.2d at 275. Evansville police also strongly suspected that executing the se arch warrant would be dangerous. They heard about the gun and drugs in the house from a reliable confidential informant who had worked for them “extensively” for sixteen to eighteen m onths, leading to dozens of arrests and convictions. Officers bolstered this suspicion by watching the house before executing the search warrant, which led them to notice activity consistent wi th active drug dealing: “short term traffic” to the house and Watkins pulling a small plastic bag f rom under a trash can behind the house. In short, not only did police have a valid warrant, they also corroborated the informant’s tip before sending in the SWAT team.

2. The degree of intrusion. Watkins argues, the State admits, and indeed any reasonable per son would agree, that the degree of intrusion was high. The SWAT team bashed in the front door with a battering ram less than fifteen seconds after pulling up in an armored vehicle. Le ss than three seconds after that, police deployed a flash-bang grenade into a room occupied only by a nine-month-old infant. A small army of officers carrying assault rifles then stormed the house, while others watched through windows and the front door. Despite this aggressive entry, police moderated the intrusion. The officer deploying the flash-bang grenade did a “quick peek” inside to check for peopl e or smells (that could indicate flammable materials or explosive methamphetamine) that would ma ke a flash-bang dangerous. 2

2 Watkins argues that the video o f the search shows that there w as no “quick peek.” But the video does not “indisputably contradict” the officer’s testimony that he did o ne. See Love v. State, 73 N.E.3d 693, 699– 700 (Ind. 2017). The officer also testified that his view was much wider than wh at the camera captured because the camera was mounted d irectly on top of his head.7 Because he couldn’t see the entire room, he took the additional precaution of setting off the grenade in the threshold—only six inches inside the door. So while the degree of intrusion was high, police carefully tailored their tactics.

3. The extent of law enforcement needs. Watkins also argues that law enforcement needs were low, downpl aying the officers’ knowledge that the house harbored cocaine, marijuana, four adul ts, and a gun. But guns and illegal drugs are a dangerous combination. See Polk v. State, 683 N.E.2 d 567, 571 (Ind. 1997) (noting the “violent and dangerous criminal milieu created by drug dealing and possession”). While that combination is not enough to j ustify intrusive searches per se (Litchfield is, after all, a totality-ofthe-circumstances test), it certainly increases law enforcement needs. This case was no exception. The gun was not hidden or locked in a safe; the informant saw W atkins carrying it. Add Watkins’s criminal history—including drug crimes, robbery, and burglary—a nd the law enforcement needs were strong.

4. Balancing the totality of the circumstances. Under the totality of the circumstances, this search was not u nreasonable. Officers strategically protected themsel ves while searching a house that they strongly suspected had cocaine, marijuana, and a suspect with a gun and violent crimin al history. The search was intrusive; we cannot describe the use of a b attering ram, flash bang grena de, and SWAT team any other way. But our constitutional analysis balances that invasiveness with police safety and other law enforcement needs. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001). The significant intrusion here did not outweigh the even mor e significant po lice interest s.
Watkins cites several Seventh Ci rcuit civil damages cases to ar gue that this search was unreasonable. See, e.g., Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir. 2010); Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003). These cases do not contro l for two reasons. First, they analyze reasonableness under the Fourth Amendment, while Watkin s’s challenge here rests solely on Article 1, Section 11. See Ca rpenter, 18 N.E.3d at 1001 (“Al though Indiana’s Section 11 and the Federal Fourth Amendment are textually identical, they are analytically distinct.”). Second, their analysis zooms in on flash-bang grenades—something incomp atible with our totality-of-thecircumstances test.8 Even if we did apply the Seventh Circuit’s flash-bang grenade j urisprudence, though, this search was likely not unreasonable. In Bender, the court found the use of flash-bang grenades unreasonable because police blindly threw them into an apartmen t without any threat of violence to anyone but the resident himself. 600 F.3d at 785–86. And in Molina, the court found their use reasonable because police believed that someone in the house ha d a violent criminal record and access to weapons. 325 F.3d at 973. This case is much more like Molina than Bender: police knew that Watkins was in the home and that he had a violent criminal history and a gun. And unlike in Bender, police took the precautions of a “quick peek” and setti ng the flash-bang just inside the doorway instead of blindly l obbing it into the room. But make no mistake: flash-bang grenades should be the excepti on in search warrant executions. Their extraordinary degree of intrusion will in man y cases make a search constitutionally unreasonable. See Watkins, 67 N.E.3d at 1104 ( May, J., dissenting). And we have serious concerns about officers he re setting off a flash-bang g renade when the only person in the room was a nine-month-old. Ultimately though, this search warra nt execution—under Litchfield’s totality-of-the-circumstances test—did not violate our Constitu tion’s search-and-seizure protections.

II. A Substantial Basis Supports Probable Cause for the Search Warr ant Under the Fourth Amendment. Watkins challenges the search warrant affidavit’s sufficiency o nly under the Fourth Amendment. As a reviewing court, our duty “is simply to ensure that [there was] a substantial basis” for finding probable cause. Illinois v. Gates, 462 U.S. 213, 238 (1983). We owe “great deference” to the initial probabl e-cause determination, and wil l not invalidate warrants by interpreting probable cause affidavits “in a hypertechnical, ra ther than a commonsense, manner.” Id. at 236. Evansville police applied for a warrant on December 17, 2014. T he probable cause affidavit read in part, Within 48 hours of December 16, 2014, a credible and reliable confidential informant (hereinafter “CI”) observed more than te n (10) grams of crack cocaine inside of 314 W. Illinois St., Evan sville, IN. Your Affiant met with CI and had CI direct him to the resid ence in your Affiant’s vehicle. . . .9 During surveillance on 314 W. I llinois 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. . . . With respect to CI’s credibility and reliability: CI has been w orking with Detectives with the Evansville Vanderburgh County Joint Dr ug Task Force for over one (1) year. The information provided by C I has led to the arrest of numerous [] individuals involved in na rcotics activity. The arrests made on the information provided by CI ha ve resulted in convictions on both th e federal and st ate level[s]. CI has provided information that has bee n utilized on judicially issue d search warrants. Information pr ovided by CI has led to the seiz ure of multiple pounds of narcotics in the Evansville, Vanderburgh County, Indiana area. Watkins argues that this affida vit is insufficient under Walke r v. State, 829 N.E.2d 591 (Ind. Ct. App. 2005), trans. denied, and Merritt v. State, 803 N.E.2d 257 (Ind. Ct. App. 2004). In those cases, the Court of Appeals rejected affidavits because t hey tied illegal drugs to a person who was selling them but not to the place to be searched. Walker , 829 N.E.2d at 595–96; Merritt, 803 N.E.2d at 260–61. In both cases, the affidavit alleged only that “an unidentified black male” had been seen at the place to be searched with what appeared to be illegal drugs. Id. Without facts showing that the unidentified pe rson with the drugs frequented, lived at, or stored drugs at the place to be searched, there was no probable cause to believe th at evidence of a crime would be found there. Id. We agree with Watkins that affidavits must show probable cause that contraband or evidence is at the place to be searched, but we disagree that t his one failed to do so. Instead of tying contraband to a perhaps-tra nsient person—as the affidavit s in Walker and Merritt did—this affidavit tied contraband to Watkins’s exact home address. It a lso included a reliable confidential informant’s observation of crac k cocaine within the past three days at the place to be searched. The affidavit thus provided a substantial basis for finding tha t the “particular place contains evidence of a crime.” Membres, 889 N.E.2d at 275 (emphasis adde d). In other words, the warrant was based on a “practical, comm onsense decision” that there was “a fair probability that contraband or evidence of a crime” would be found in Watkins’s house. Query v. State, 745 N.E.2d 769, 771 (Ind. 2001) (quoting Gates, 462 U.S. at 238). Watkins has not overcome the warrant’s presumption of validity, see Brock v. State, 540 N.E.2d 1236, 1 239 (Ind. 1989), so we affirm.10 Conclusion
The Litchfield test continues to serve us well, so we decline the State’s invitation to replace it with an unprecedented “no reasonable officer” test for searc h warrant executions. Under the totality of the circumstances, the search warrant execution at Watkins’s house did not violate Article 1, Section 11 of the Indiana Constitution. And the sear ch warrant affidavit survives our deferential Fourth Amendment review because it provided a subst antial basis for the probable cause finding. We therefore affirm the trial court. David, Massa, Slaughter, and Goff, JJ., concur.