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ATTORNEY FOR APPELLANT Victoria Ursulskis Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Nicole M. Schuster Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 49S05-0507-CR-319 ALBERT HARDISTER, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, No. 49G20-0012-CF-221197 The Honorable Michael Jensen, Magistrate _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0310-CR-535 _________________________________ June 28, 2006 Boehm, Justice. Albert Hardister and Joshua Kendall were jointly tried and convicted of dealing cocaine and other offenses. Hardister's case was reversed by the Court of Appeals, and Kendall's conviction was affirmed by a different panel. We conclude that the convictions should be affirmed. Facts and Procedural History Albert Hardister is one of four adults and one minor arrested in the melee described below. He was tried jointly with Joshua and Thomas Kendall. Hardister and Joshua were con-

victed of dealing cocaine and other offenses, and Thomas was acquitted. The fourth adult, Frederick Pace, was convicted of possession of cocaine in a separate trial. On the evening of December 5, 2000, Indianapolis Police officers Jack Tindall and Christopher Lawrence responded to an anonymous tip that persons with guns were "cooking drugs" at 407 North Hamilton Avenue in Indianapolis. That address was one side of a duplex with units at 405 and 407. The officers went to the front porch of 407, and officer Tindall knocked on the door. When no one answered, he knocked again. Hardister appeared at a window approximately a foot and a half to the right of the front door, pulled back an "opaque" covering and made eye contact with Tindall. Tindall shined his flashlight on his badge, identified himself as a police officer, and asked Hardister to open the door. A second man pulled back the covering and also looked out the window. The officers then heard running footsteps and looked through the window to see the silhouettes of two men fleeing to the rear of the residence. The officers believed the two were trying to exit through the back door, and followed a sidewalk from the front porch along the side of the house to the rear. When no one appeared at the back door, Tindall looked through an uncovered rear window and observed Hardister pouring a white powder substance down the drain of the kitchen sink. Tindall yelled at Hardister to stop and open the back door, but Hardister instead ran back toward the front of the house. At that point, Tindall heard screams from the front of the house and returned to the front. Meanwhile, officer Lawrence had stopped to look through a side window, and observed three men huddled together in the kitchen. Lawrence then proceeded to the rear, and when no one exited through the back door, he returned to the side window. At that point, Lawrence heard a noise from above, looked up, and saw a man climb out a second story window and then reenter the house. In response to an additional commotion coming from the front of the house, officer Lawrence then ran to the front. By the time Lawrence and Tindall reached the front of the house, three occupants of 407, later identified as Joshua and Thomas Kendall and the juvenile, had gained access to the roof of the duplex via a second story window. Additional officers had arrived on the scene and ordered all three to kneel down on the roof. Thomas and the juvenile complied but Joshua ran across the roof toward an adjacent building, dropping plastic bags of white powder onto the roof and

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ground as he went. When Joshua reached the edge of the roof of the duplex, he tossed another bag at an officer's feet. Joshua then jumped to the roof of a neighboring duplex, lept back onto the roof of 405-407, and reentered 407 through a second story window. After receiving permission from the residents of 405, officers accessed the roof through 405 and arrested Thomas and the juvenile. The officers then entered 407 through a second story window and ordered everyone inside the house to come out with their hands up. Frederick Pace emerged voluntarily from a bedroom, and Joshua and Hardister were found hiding in the attic. All three were arrested. A pat down of Joshua produced $1,600 in small bills. After securing a search warrant, officers searched 407 and seized over 300 grams of cocaine; plastic baggies; a scale and plate covered with cocaine residue; an additional $1,700 in cash; cellular phones; a surveillance system including a camera, video monitor and light that lit when the back door bell was pushed; a loaded handgun and a shotgun; and ammunition. Laboratory tests confirmed that the bags tossed onto and from the roof contained cocaine. A jury found Hardister guilty of five counts: Class A felony dealing cocaine, felony possession of cocaine as a Class A felony by reason of proximity to a park and the amount of cocaine involved, possession of cocaine and a firearm as a Class C felony, unlawful possession of a firearm by a serious violent felon as a Class B felony, and obstruction of justice, a Class D felony. The court sentenced Hardister to fifty years for dealing, fifteen years for unlawful possession of a firearm by a serious violent felon, and three years on the obstruction count, all to be served consecutively for a total executed sentence of sixty-eight years. The court also imposed eight years for possession of cocaine and a firearm to be served concurrently with the sentences for dealing and possession of a firearm by a serious violent felon. Citing double jeopardy concerns, the trial court did not enter judgment or conviction on the Class A felony possession of cocaine. Hardister appealed his convictions and sentence on several grounds. The Court of Appeals reversed, holding that police observations through the windows of the residence constituted unlawful searches under the federal and state constitutions, that all evidence derived from the subsequent search of the residence was required to be excluded, and that the remaining evidence was insufficient to support Hardister's conviction on any of the five counts. Hardister v. State,

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821 N.E.2d 912, 924 (Ind. Ct. App. 2005), reh'g denied, 2005 Ind. App. LEXIS 535 (Ind. Ct. App. Mar. 29, 2005). We granted transfer. 841 N.E.2d 175 (Ind. 2005). Joshua Kendall also appealed and a different panel of the Court of Appeals affirmed his convictions and sentence in an opinion that is substantially consistent with this opinion. Kendall v. State, 825 N.E.2d 439, 455-56 (Ind. Ct. App. 2005). I. Suppression of Evidence Under the State and Federal Constitutions Hardister argues that the officers' accounts of what they observed through the windows of the residence together with the weapons, drugs and other items seized from the residence must be suppressed under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. Despite an exceptionally well-presented appeal, for the reasons explained below, we do not agree. The Court of Appeals found no Fourth Amendment interest implicated when officers Tindall and Lawrence approached the front door of 407 to investigate and observed Hardister and another through a covered window as the two turned and fled. We agree. The Fourth Amendment protects citizens against unreasonable searches and seizures. No unreasonable search occurs when police enter areas of curtilage impliedly open to use by the public to conduct legitimate business. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment

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