ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
FRANK R. HAHN STEVE CARTER
Law Office of John Burley Scales Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
SCOTT S. HOLDER, ) ) Appellant-Defendant, ) ) vs. ) No. 87A05-0402-CR-94 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
SCOTT S. HOLDER,
) No. 87A05-0402-CR-94
STATE OF INDIANA, )
ROBB, Judge, concurs with separate opinion.
I respectfully concur with Chief Judge Kirsch, but write separately. The issue
here concerns whether the evidence recovered from the search of Holders residence is
inadmissible because it was obtained in violation of Article I, Section 11 of
the Indiana Constitution. Article I, Section 11 guarantees [t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
search or seizure . . . . We liberally construe Article I,
Section 11 in order to protect Hoosiers from unreasonable police activity in private
areas of their lives. State v. Stamper, 788 N.E.2d 862, 865 (Ind.
Ct. App. 2003), trans. denied. When we evaluate Section 11 claims, we
place the burden on the State to show that under the totality of
the circumstances its intrusion was reasonable. Id. We have also stated
that the protections provided by the Indiana Constitution, including Article I, Section 11,
may be more extensive than those provided by its federal constitutional counterparts.
Taylor v. State, 639 N.E.2d 1052, 1053 (Ind. Ct. App. 1994).
Although decided on Fourth Amendment grounds, I believe that Divello v. State, 782 N.E.2d 433 (Ind. Ct. App. 2003), trans. denied, is instructive here. In Divello, police went to the defendants house without a search warrant to investigate an anonymous tip that the defendant was selling marijuana out of his residence. The officers knocked on both the front door and the back door of the defendants home but received no answer. The officers then proceeded to an adjacent property also owned by the defendant. To gain access to the adjacent property, the officers walked through the backyard of the first residence and then through an open gate in a privacy fence. The officers knocked on the front door of the second residence but again received no answer. The officers then noticed a truck in the back of the second residence that was parked partly in the driveway and partly in the grass. One of the officers walked around the truck to a position where he was between the truck and the house. While in this position, the officer smelled the odor of marijuana coming from the house. The other two officers came to that same position and also smelled marijuana. One of the officers indicated that he had to get eighteen inches away from the house before he could smell the marijuana. Based on the marijuana odor, the officers were able to get a search warrant, and marijuana was found in the defendants home. The defendant filed a motion to suppress the evidence obtained pursuant to the search warrant, arguing that the officers entry onto and search of his property violated the Fourth Amendment, but the trial court denied his motion.
We initially stated:
When police enter onto private property in order to conduct an investigation or for another legitimate purpose and restrict their entry to places that other visitors would be expected to go, such as walkways, driveways, or porches, any observation made from these areas is permissible under the United States Constitution and the Fourth Amendment thereto. Accordingly, an individual does not have a reasonable expectation of privacy with regard to things or activities within a residence that may be observed by persons using their natural senses from places impliedly open to a visitor's entry. In general, this means that "if police utilize 'normal means of access to and egress from the house' for some legitimate purpose, such as to make inquiries of the occupant. . . it is not a Fourth Amendment search for the police to see or hear or smell from that vantage point what is happening inside the dwelling.
Id. at 437 (internal citations omitted). However, we went on to conclude
that the officers observation of the odor of marijuana was constitutionally impermissible.
We stated that when the officer walked around the truck and within four
feet of the house, he was clearly no longer in a place where
visitors could be expected to go; he had invaded the curtilage of [the
defendants] property. [The defendant] had a reasonable expectation of privacy in this
area, and therefore, [the officers] actions violated the Fourth Amendment. Id. at
439 (internal citations omitted). Because the officers actions violated the Fourth Amendment,
we held that all evidence obtained from the search of the residence should
have been suppressed. Id.
This case is similar to Divello. Here, Officer Bruner smelled ether, but could not determine exactly where in the neighborhood the smell originated. Lieutenant Hadley and Chief Harmon arrived shortly thereafter, and the three began to walk through the neighborhood trying to determine the source of the ether smell. They noticed a truck with its hood up in Holders backyard. Without a search warrant, they entered Holders property, walked past his house and into his backyard, and proceeded to examine the area around the truck. Apparently not finding anything, they left Holders yard and went to a neighbors house. When no one answered the door at the neighbors house, they returned to Holders property. As they walked along the south side of the house, Officer Bruner noticed a crack in a basement window. He knelt down to within inches of the window and smelled ether.
Pursuant to Divello, I believe that the officers actions here violated the Fourth Amendment, but that is not the issue we are asked to decide here. I believe that in this case, Article I, Section 11 affords the same or greater protection than the Fourth Amendment. Therefore, I concur with Chief Judge Kirsch that the officers actions are unreasonable under Article I, Section 11. When the officers entered Holders backyard and examined the area around the truck and when Officer Bruner smelled ether at the crack in the basement window, the officers were no longer in areas where visitors would be expected to go, and had invaded the curtilage of the property. Holder had a reasonable expectation of privacy in the area constituting the curtilage of his home, and, therefore, the officers violated Article I, Section 11.
Judge Bakers dissent evinces a strong concern regarding the threat posed by the manufacture, sale, and use of methamphetamine. I share this same concern, but I do not feel that the threat posed by methamphetamine justifies allowing police officers to wander around a neighborhood searching for the source of an ether odor. Nor does it justify police officers entering onto private property without a search warrant and sniffing at the cracks of an individuals basement window. I therefore concur with Chief Judge Kirsch.
BAKER, Judge, dissenting.
I respectfully dissent and must part ways with the majoritys decision to reverse the denial of Holders motion to suppress. In my view, Officer Bruners initial entry onto the premises was lawful, as was the warrantless entry into the house in light of the exigent circumstances that existed here.
I would note that the touchstone of our analysis under the Fourth Amendment is whether an individual has a constitutionally protected reasonable expectation of privacy. Schultz v. State, 742 N.E.2d 961, 964 (Ind. Ct. App. 2001). At least one commentator has observed that when the police come onto private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 506-08 (3d ed. 1996). Moreover, what a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. Sayre v. State, 471 N.E.2d 708, 712 (Ind. Ct. App. 1984).
A well-known exception to the warrant requirement permits a police officer to enter a home when it is believed that evidence may be destroyed or removed before a warrant is obtained. State v. Straub, 749 N.E.2d 593, 600 (Ind. Ct. App. 2001). The officers must have a reasonable belief that there are people within the premises who are destroying or about to destroy the evidence. Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind. 1994). In such a case, the nature of the evidence must be evanescent, and the officers must fear its imminent destruction. Id. Yet another exception to the warrant requirement arises when the risk of bodily harm or death is present, or when it is necessary to come to the aid of an individual who is in need. VanWinkle v. State, 764 N.E.2d 258, 266 (Ind. Ct. App. 2002), trans. denied. Put another way, [t]he need to preserve or protect life justifies what would otherwise be illegal if exigency or emergency did not exist. Vanzo v. State, 738 N.E.2d 1061, 1064 (Ind. Ct. App. 2000).
In light of the above, it is apparent to me that Officer Bruners decision to enter the premises and conduct the smell test at the basement window was simply incident to the strong odor of ether that was drifting through the vicinity. And Holder had already exposed his illegal activity to the public, as evidenced by the odor of ether in the air and cracked window from which he permitted it to escape. Tr. p. 13. Additionally, the record shows that Officer Bruner already sensed the strong odor outside Holders residence while armed with the knowledge that ether is a precursor in the manufacture of methamphetamine. Tr. p. 7-9, 38. Put another way, it is without dispute that Officer Bruner detected the odor of ether before he approached Holders window and before coming in extreme proximity to the residence.
That said, I believe it was reasonable for Officer Bruner to suspect that methamphetamine was being manufactured and to make an initial entry onto Holders land to investigate. Hence, I must disagree with the majoritys determination that Officer Bruners smell test at the basement window was overly intrusive of Holders privacy rights to the extent that his protections as guaranteed under the Fourth Amendment were violated.
I would also note that sufficient exigent circumstances existed here that justified the officers entry into the residence without a warrant. During a conversation with the officers at the residence, Holder told them that he had pending criminal charges for the manufacture of methamphetamine. Tr. p. 14. Holder went on to admit that his three-year-old granddaughter was in the house, along with two other adults. Tr. p. 18. To me, all the circumstances herethe strong smell of explosive ether, the adults in the home that could have been destroying evidence, the endangered child, and Holders pending charges for manufacturing methamphetaminejustified the warrantless entry into Holders residence. Accordingly, I vote to affirm the trial courts judgment in denying Holders motion to suppress.