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ATTORNEYS FOR APPELLANT Harold W. Myers Wyss, Morgan & Myers P. Stephen Miller Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 02S05-1010-CR-601 CORNELIUS TYRONE LACEY, SR., v. STATE OF INDIANA,

In the

FILED
May 10 2011, 10:03 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below),

Appellee (Plaintiff below). _________________________________

Interlocutory Appeal from the Allen Superior Court, No. 02D04-0812-FB-222 The Honorable John F. Surbeck, Jr., Judge _________________________________ On Transfer from the Indiana Court of Appeals, No. 02A05-0910-CR-562 _________________________________ May 10, 2011 Dickson, Justice.

In this interlocutory appeal, the defendant challenges the trial court's denial of his motion to suppress evidence obtained from the execution of a search warrant by police forcing their way into his residence without first knocking and announcing their presence. The Court of Appeals reversed. Lacey v. State, 931 N.E.2d 378 (Ind. Ct. App. 2010). We granted transfer and hold that the Indiana Constitution does not require prior judicial authorization for the execution of a warrant without knocking and announcing when justified by exigent circumstances known by police when the warrant was obtained. Because judicial officers may issue advance authorizations for police to bypass the knock and announce requirement, however, the better police prac-

tice is to minimize legal uncertainty by seeking such advance approval when supported by facts known when the warrant is sought.

Co-defendants Cornelius Lacey and Damion Wilkins are each charged with Unlawful Possession of a Firearm by a Serious Violent Felon and Possession of Marijuana. Additionally, Lacey is charged with Maintaining a Common Nuisance. The evidence to support these charges was obtained as a result of a police search of Lacey's residence in Fort Wayne, Indiana, pursuant to a search warrant that was executed by police officers without first knocking and announcing their presence. The trial court denied the defendant's motion to suppress evidence but authorized an interlocutory appeal of its ruling, and the Court of Appeals accepted jurisdiction. Ind. Appellate Rule 14(B).

The defendant's interlocutory appeal argues in the alternative that (a) the search warrant was not supported by probable cause, and (b) even if the warrant was valid, it was executed without compliance with the knock and announce requirement in violation of state constitutional law. Finding probable cause for the issuance of the search warrant of the defendant's residence, the Court of Appeals rejected the first argument but concluded that the officers' decision in this case to enter the residence without knocking and announcing their authority violated the Search and Seizure Clause of the Indiana Constitution1 and that suppression of the resulting evidence was the appropriate remedy.2 We summarily affirm the Court of Appeals as to the first issue, the sufficiency of probable cause for the issuance of the warrant. Ind. App. R. 58(A)(2).

As to the remaining issue, the manner of execution of the warrant, the defendant's arguVirtually mirroring the language in the Fourth Amendment to the United States Constitution, Article 1, Section 11 of the Indiana Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. The defendant seeks relief only under the Indiana Constitution, noting that federal Fourth Amendment jurisprudence does not require the exclusion of evidence following the failure of police to knock and announce. See Hudson v. Michigan, 547 U.S. 586, 590

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Indiana Law