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Case from city heard by justices

Search and seizure at issue

– A dogfight, marijuana and a warrantless search were at the heart of a Fort Wayne case heard Thursday by the Indiana Supreme Court.

The justices could find the police violated a man’s rights against unreasonable search and seizure, though he has already served his two-year prison sentence.

Police and animal control officers arrived at the house in July 2012 after receiving a report of dogs fighting in the yard.

The neighbor said the owner wasn’t home and gave the first officer to arrive the owner’s cellphone number.

The animal control officer jumped a 3-foot-high fence to break up the fight. Three dogs had been attacking one dog. The most injured dog and two of the attackers were quickly rounded up by animal control. But the last aggressive dog ran inside the house, where a sliding door was open.

The animal control officer and a Fort Wayne police officer then went inside the home to get the remaining dog or search for any possible human victims – testimony on that issue differed. One officer opened a door and found marijuana plants.

Jonathan Carpenter was charged with multiple felonies. Allen Superior Court Judge Wendy Davis refused to suppress the evidence of the marijuana and the Indiana Court of Appeals agreed.

Several members of the Indiana Supreme Court on Thursday seemed to have serious questions about whether it was legal for the officers to enter the home.

Police generally must have an exigent or emergency circumstance to enter a home without a warrant.

But attorney Andrew Teel argued Thursday on behalf of Carpenter that Indiana law has never considered concern over an animal to meet that threshold – only a human.

Some other states have extended the law to aid of animals.

“One of the most fundamental aspects of search and seizure law is houses receive the highest protection,” he said.

Justice Steven David also noted that police could have just shut the sliding door and called the homeowner.

Deputy Attorney General Cynthia Ploughe argued for the state that the officers were just doing their job – securing a vicious dog that could also be hurt.

“These dogs were in attack mode,” she said. “There was still a zone of danger officers needed to address.”

Even under this theory, though, Teel said once inside officers should not be able to look into closed rooms for the dog.

One officer reported kicking open a door inside the home where marijuana was found, but Ploughe said it was unclear whether the door might have been slightly ajar.

“The doors were not open enough for an animal or human to pass through, correct?” David asked.

Ploughe agreed.

She also contended that officers were ensuring no one was injured in the home.

But Justice Mark Massa asked several times what objective evidence they had to even consider that possibility.

Ploughe said the mere fact that it was a residence where humans could live was enough to justify a protective sweep.

Teel said “there was no evidence whatsoever to support a person might be injured.”

The court will rule in the coming weeks or months.

nkelly@jg.net

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