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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)