Dad accused of killing Nakota Kelly claims police search was illegal, wants evidence suppressed

WRTV's Kaitlyn Kendall shares the story of a mother who is suing the Indiana Department of Child Services for its failure to protect her 10-year-old son.

By: Vic Ryckaert

INDIANAPOLIS — The man accused of killing his son Nakota Kelly nearly two years ago asked a judge to throw out evidence linking him to the boy's death that was found when officers searched his apartment without a warrant.

Anthony Dibiah, prosecutors say, smothered his 10-year-old son on July 18, 2020, disposed of the body and fled Indianapolis. Police arrested him the next day in Missouri, according to court records.

During a hearing Wednesday in Marion Superior Court, defense attorney Brian K. Lamar asked Magistrate James Kevin Snyder to suppress evidence found in Dibiah's apartment, including hair, blood smears and brain matter. Officers, Lamar argued, should have obtained a search warrant before entering the home.

Deputy Prosecutor Michelle Sharpe argued the "exigent circumstances" gave officers the legal authority to enter the apartment and check on the boy's welfare.

Prosecutors argue the law allows police to enter private property when they have reason to believe a person's life might be in danger. In this case, officers got the keys to the apartment after two witnesses told police that Dibiah had called them and confessed to killing his son.

Retired IMPD Officer Dennis Nike testified Wednesday that he was among the first to enter Dibiah's unit that day. Nike described getting a master key from the apartment office, opening the door and entering the small studio apartment.

"I'm thinking there's possibly a dead child in the apartment or an injured child who we need to check on," said Nike, who now works as an officer with the Butler University Police Department.

Nike said he and two other officers entered carefully, announcing themselves and checking all areas where a person might be hiding. They opened a door to the bathroom, Nike said, and found a blood smear and brain matter on the floor.

Officers backed out of the apartment, guarded the entrance and called for homicide detectives, Nike said.

Dibiah was arrested in Missouri on July 19, 2020. Officers have still not found Nakota's body.

Attorneys have until May 4 to provide written arguments to the court. The ruling on whether the evidence will be suppressed could be announced during a May 11 pretrial hearing.

Dibiah's trial is scheduled for May 23, but Lamar said Wednesday he might be seeking a delay.

Last week, Nakota's mom Hayley Kelly filed a lawsuit against the Indiana Department of Child Services for its failure to protect her son despite repeated claims that he had been abused or neglected by his father.

Read the WRTV exclusive Nakota's story:
Part 1 |Love and lies: How a single mom from Wabash fell in love with a man with five names;
Part 2 |'Unsubstantiated': DCS investigated at least five abuse complaints against Nakota Kelly's father;
Part 3 |The last visit: Nakota Kelly's short life ends in violence at his father's home

More: 'If they had just listened to Nakota': Mom sues DCS for failing to protect Nakota Kelly | Trial delayed for man accused of killing his son Nakota Kelly