THE FOURTH AMENDMENT AND POLICE OFFICERS’ USE OF LIES OR ULTIMATUMS

In two recent cases, the court of appeals found Fourth Amendment violations based on police officers’ use of lies or ultimatums.  In Harper v. State, 3 N.E.3d 1080 (Ind.Ct.App. 2014), the court reversed Robin Harper’s resisting law enforcement conviction where, without any exigent circumstances and after being denied consensual entry, a police officer lied to gain entry into her home and was thus not "lawfully engaged in the execution of the officer's duties" under Ind. Code § 35-44.1-3-1.  When the officers went to Harper’s residence to arrest her for domestic battery, she refused to open her screen door and allow them inside.  She also refused to step outside, so the officers lied to Harper, telling her she needed to sign a protective order.  When Harper opened the screen door, the officers stepped inside to arrest her, and she was charged with misdemeanor resisting arrest when she pulled away from one of the officers as he tried to remove her wedding ring after she was handcuffed.  Although the officer's purpose for entering Harper's home was to arrest her, the court noted he was still required to obtain an arrest warrant before entering.  Instead, he chose to use fraud to gain entry into the home.  This was not a situation of hot pursuit or a crime committed in the presence of the officer.    Given the officers' unlawful entry into Harper’s residence, they were not engaged in the lawful execution of their duties at the time they arrested her.  Thus, the evidence was insufficient to support her conviction. 

Similarly, a police officer’s use of an ultimatum during a traffic stop resulted in an illegal pat-down search and suppression of evidence in State v. Cunningham, 4 N.E.3d 800 (Ind.Ct.App. 2014).  After the officer properly stopped Michael Cunningham's vehicle for having only one red tail lamp, he told Cunningham he would pat him down if he left his vehicle to inspect the broken tail lamp. Absent consent by Cunningham, the officer could not have legally conducted a pat-down search because he had no reasonable suspicion to believe that Cunningham was armed and dangerous.  The court concluded that the officer clearly did not ask Cunningham for permission to conduct a pat-down search.  Instead, he gave an ultimatum to Cunningham, who had no choice but to submit to the pat-down when he exited the vehicle.  Thus, the State failed to establish that Cunningham's purported consent to the pat-down was constitutionally valid, and the officer’s subsequent discovery of marijuana and drug paraphernalia was fruit of the poisonous tree.  Judge Brown issued a dissenting opinion, expressing her belief that in opting to exit the vehicle, Cunningham consented to the pat-down search.