IN: Tossing flash bang into room with only a 9 month old baby in a playpen during drug raid was excessive under the circumstances; suppressed

Using a flash bang device during a SWAT drug raid that went off in a room with only a nine-month old baby in a playpen violated the state constitution for its overall unreasonableness. Watkins v. State, 2017 Ind. App. LEXIS 2 (Jan. 6, 2017):

P30 Regarding the degree of intrusion, we agree with Watkins’s characterization of the execution of the search warrant as a “military-style assault.” Appellant’s Brief at 25. The record reveals that at least a dozen officers surrounded the residence, most of whom were armed with assault weapons. At the front door, the officers knocked and announced their presence seconds before using a battering ram to crash open the front door and then tossed a flash bang device inside the residence no more than one second later and in a room containing a nine-month old baby in a playpen. That room which the SWAT team entered also contained a baby’s car seat and a toddler’s activity center in the line of sight of the front door. One of the officers announced: “Flash bang, flash bang, flash bang.” State’s Exhibit 1 at 4:00-4:05. The first statement of the phrase “flash bang” occurred while the door was not fully open. State’s Exhibit 1 at 4:00-4:05. The video shows almost no time lapse between when the door was battered in and the tossing of the flash bang. The door was barely opened when the flash bang was immediately tossed into the room, and the angle at which Officer Taylor was standing to the door did not allow him an opportunity to see what was inside the room. Indeed, Officer Taylor acknowledged that he could not see portions of the room in which the flash bang was placed. Specifically, he testified that he could see “from the couch over to the left, I can’t see the corner, the left corner inside the room and I can’t see the hallway in front of it, that’s why the flash bang goes in the threshold.” Transcript at 82-83. The audio from the recording reveals what appears to be Officer Taylor stating: “Because the baby was in this room, but I put it right there for a reason.” State’s Exhibit 1 at 8:55-9:00. Officer Taylor took the baby out of the house and handed the baby to a woman dressed in street clothes.

P31 While Officer Taylor testified that the burn mark from the flash bang can be seen six inches inside the door, Detective Goergen testified: “I think you can see like the octagon shaped playpen, I know where the baby was at, it was very close to the door.” Transcript at 332. Other officers smashed in the kitchen window and threw a flash bang grenade inside that filled the kitchen with smoke and set off the smoke detectors. They handcuffed Watkins and took him outside to sit on the curb. They searched his house, breaking open a locked door leading to the laundry room in the process.

. . .

P33 Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a nine-month old baby who was “very close” to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances. We conclude that the search violated Watkins’s rights under Article 1, Section 11 of the Indiana Constitution and that the trial court erred in admitting the evidence discovered as a result of the search.

This entry was posted in Reasonableness, Warrant execution. Bookmark the permalink.

Comments are closed.