Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Nov 07 2013, 9:54 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. ZACH WINSETT GREGORY F. ZOELLER
J. BURLEY SCALES Attorney General of Indiana
Boonville, Indiana
BRIAN L. REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL SCHEPERS, )
)
Appellant-Defendant, )
)
vs. ) No. 19A01-1303-CR-100
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DUBOIS SUPERIOR COURT
The Honorable Mark R. McConnell, Judge
Cause No. 19D01-1208-FB-663
November 7, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this interlocutory appeal, we are called upon to decide whether it was proper for
sheriff’s deputies pursuant to the Fourth Amendment to the United States Constitution
and Article I, Section 11 of the Indiana Constitution to approach the appellant-defendant
Michael Schepers’s residence, perform a “knock and talk” procedure, enter the house,
and conduct a protective sweep of the residence after discovering that Schepers and some
of his relatives had made several pseudoephedrine purchases.
In light of the officers’ experience that the occupants were likely operating a
methamphetamine laboratory in the house, exigent circumstances existed and the
officers’ entry and protective sweep of the residence was warranted after they noticed a
strong odor of ammonia emanating from the house. Also, after securing and executing a
search warrant, the officers seized a meth lab, some marijuana, and several precursors
from the residence.
We affirm the trial court’s denial of Schepers’s motion to suppress and remand
this cause for trial.
FACTS
Sometime in August 2012, Dubois County Sheriff’s Deputy John Anderson was
examining the local pseudoephedrine purchase logs and discovered what he considered to
be several “peculiar buys.” Tr. p. 14-15. Deputy Anderson noticed that two teenagers,
who lived approximately a block apart, had purchased some pseudoephedrine on August
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12, 2012. Deputy Anderson located one of the purchasers, Steven Jessee, and asked if he
still had the drug. Jessee admitted that he had given the pseudoephedrine to Schepers.
Deputy Anderson later learned that another individual, Dylan Crays, had
purchased a box of pseudoephedrine and had given it to Schepers. It was also determined
that some of Schepers’s relatives had purchased various quantities of pseudoephedrine on
August 11 and 13. Some of the drugs had been purchased in another county.
Deputy Anderson and some other officers went to Schepers’s house, approached
the main door of the residence, and noticed a “strong smell of ammonia.” Tr. p. 22.
Although Deputy Anderson knocked on the door, no one answered. However, Deputy
Anderson heard footsteps inside the residence, and heard some dogs barking. Two other
officers at the scene heard some “commotion” and people running inside the house. Id. at
59-60, 66, 27-28, 30-33.
Deputy Anderson opened the unlocked door, announced his presence, and ordered
everyone in the house to leave. Deputy Anderson also noticed a cloud of smoke
emanating from the residence and smelled marijuana. Schepers exited the residence,
which he acknowledged was his, and denied that anyone else was inside. However, two
other individuals eventually emerged and walked outside. Schepers also admitted to one
of the detectives that he was operating a methamphetamine lab in the house.
Deputy Anderson telephoned the prosecutor’s office and informed the deputy
prosecutor what had occurred. Deputy Anderson and an Indiana State Trooper entered
the house and conducted a protective sweep of the residence. Deputy Anderson applied
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for a search warrant that was subsequently granted. During a search of the residence, the
police officers located a meth lab, precursors that related to methamphetamine
manufacture, and some marijuana.
Schepers was charged with dealing in methamphetamine, a class B felony,
possession of chemical reagents or precursors with intent to manufacture a controlled
substance as a class D felony, possession of marijuana as a class A misdemeanor, and
possession of paraphernalia as a class D felony.
On September 18, 2012, Schepers filed a motion to suppress, claiming that the
evidence recovered from the residence should not be admitted at trial. In particular,
Schepers argued that the officers’ entry into the residence and subsequent seizure of the
drugs from his residence violated his rights under the Fourth Amendment to the United
States Constitution and Article 1, Section 11 of the Indiana Constitution.
At the hearing, Deputy Anderson testified that he had attended several courses
regarding the various methods of methamphetamine manufacture. Deputy Anderson had
seen several active methamphetamine laboratories, all of which involved the odor of
ammonia and other chemicals.
Deputy Anderson also testified that he had been involved in various
methamphetamine arrests and had noticed a strong chemical odor on each occasion.
Deputy Anderson acknowledged that these laboratories were volatile, could explode, and
posed a danger to persons and animals that might be nearby. He was convinced that,
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based on his experience, the ammonia odor emanating from Schepers’s residence was
associated with the manufacture of methamphetamine.
Following arguments on the motion, the trial court determined that “no exigent
circumstances existed to excuse a warrantless entry into Schepers’s residence.”
Appellant’s App. p. 11. However, the trial court determined that the information the
officers obtained combined with the chemical odor associated with the manufacture of
methamphetamine they encountered when approaching Schepers’s residence gave them
probable cause to believe that a crime was being committed. Thus, they were permitted
to apply for and execute the search warrant. As a result, the trial court denied Schepers’s
motion to suppress because, even in the absence of exigent circumstances, “the evidence
would inevitably be discovered by the execution of the search warrant.” Appellant’s
App. p. 13-14.
Pursuant to Schepers’s request, the trial court certified the matter for interlocutory
appeal, and we accepted jurisdiction over this case on April 17, 2013.
DISCUSSION AND DECISION
I. Standard of Review
We review the denial of a motion to suppress in a manner similar to reviewing the
sufficiency of the evidence. Clark v. State, 994 N.E.2d 252, 258 (Ind. 2013). We
consider only the evidence favorable to the trial court’s ruling, along with substantial
uncontradicted evidence to the contrary, to decide if that evidence is sufficient to support
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the denial. Id. As are the circumstances here, direct review of the denial of a motion to
suppress is only proper when the defendant files an interlocutory appeal. Id. at 259.
II. Knock and Talk
Schepers first claims that the evidence seized from his residence should have been
suppressed because the officers improperly performed a “knock and talk” procedure.
Appellant’s Br. p. 5. Schepers argues that the police officers’ conduct, including their
approach to his residence, was more akin to a “raid” than a “knock and talk procedure.”
Appellant’s Br. p. 5.
In resolving this issue, we note that “absent a clear expression by the owner to the
contrary, police officers, in the course of their official business, are permitted to approach
one’s dwelling and seek permission to question an occupant.” Sugg v State, 991 N.E.2d
601, 607 (Ind. Ct. App. 2013). Law enforcement officers, without a warrant, may
approach and knock on a door because “they do no more than any private citizen might
do.” Kentucky v. King, 131 S.Ct. 1849, 1862 (2011). Only when the officer, by means
of physical force or show of authority, has in some way restrained the liberty of a citizen
may we conclude that a “seizure” has occurred. Sugg, 991 N.E.2d at 607.
In this case, the evidence demonstrated that Deputies Anderson and Miller walked
to Schepers’s residence and knocked on the door. Deputy Anderson detected the odor of
ammonia. Tr. p. 22, 25, 39. Based on his experience and the strong smell of that
chemical, Deputy Anderson inferred that a methamphetamine lab was being operated in
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the residence, so he opened the door and conducted a limited protective sweep of the
house. In our view, no improper conduct occurred here.
As discussed in more detail below, Deputy Anderson ordered the occupants from
the house and exigent circumstances existed for them to enter the house and conduct the
protective sweep. In short, Schepers’s contention that the evidence should have been
suppressed because the officers performed an allegedly improper knock and talk
procedure when they approached the residence fails.
III. Improper Search and Seizure
In a related issue, Schepers contends that the evidence should have been
suppressed because the deputies’ act of opening the door to the residence and “seizing
Schepers” constituted an “improper warrantless search under both the Fourth Amendment
and Article I, Section 11.” Appellant’s Br. p. 4. Schepers claims that there were no
exigent circumstances that justified the officers’ conduct. In other words, Schepers
maintains that the police officers should have waited for the issuance of the search
warrant prior to entering the residence.
We initially observe that the Fourth Amendment to the United States Constitution
provides that “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated. . . .” In general,
warrantless searches are “per se unreasonable under the Fourth Amendment, subject to a
few specifically established and well-delineated exceptions.” McIlquham v. State, 992
N.E.2d 904, 908 (Ind. Ct. App. 2013).
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A search conducted without a warrant requires the State to prove that an
exception to the warrant requirement is “applicable at the time of the search.” Holder v.
State, 847 N.E.2d 930, 935 (Ind. 2006). One such exception arises as a result of “exigent
circumstances,” that includes threats to the lives and safety of officers and others and the
imminent destruction of evidence. Id. at 937.
Our Supreme Court has determined that probable cause to believe that an occupied
residence contains a methamphetamine laboratory—based largely on chemical odors
emanating from the residence—presents exigent circumstances permitting a warrantless
search for the safety of the occupants. Id. at 939.
Thus, contrary to the trial court’s determination, we believe that the police officers
in this case had probable cause to believe that Schepers’s residence contained a
methamphetamine laboratory based not only on the strong odor of ammonia emanating
from the residence, but also on the recent bulk purchases of pseudoephedrine that
Schepers and his relatives made. Tr. p. 22, 25. Indeed, the evidence showed that
Schepers had purchased at least five boxes of pseudoephedrine within a three-day time
period. Ex. 1.
As noted above, the deputies detected a strong smell of ammonia that increased as
they approached the front door. Id. at 22, 25, 39. Deputy Anderson knew from his
training and experience that the odor of ammonia was associated with methamphetamine
manufacture. Id. at 37. Deputy Anderson also realized that methamphetamine
laboratories were “very” volatile and often exploded, thus resulting in a danger to any
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person or animal that might be nearby. Tr. p. 38-39. The police officers also had reason
to believe that more people could be inside the residence. Deputy Fleming, who was
familiar with Schepers and the residence, did not know whose vehicle was parked
outside. And as noted above, the officers heard a lot of “commotion” and people running
through the house. Tr. p. 27-28, 30-33, 59-60, 66, 73, 78.
When Schepers exited the residence, he lied to the police officers, stating that no
one else was inside. When two more individuals later exited, the officers had no reason
to believe that they were the only two individuals remaining inside. Thus, exigent
circumstances existed in this instance and the officers were justified in entering
Schepers’s residence. Holder, 847 N.E.2d at 939.
Similarly, Schepers has failed to establish that the police officers’ actions violated
Article 1, Section 11 of the Indiana Constitution. “Indiana citizens have been concerned
not only with personal privacy but also with safety, security, and protection from crime.”
Id. at 966 (quoting Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001)). It is because of
concerns among citizens about safety, security, and protection that some intrusions upon
privacy are tolerated, so long as they are reasonably aimed toward those concerns. Thus,
we have observed “that the totality of the circumstances requires consideration of both
the degree of intrusion into the subject’s ordinary activities and the basis upon which the
officer selected the subject of the search or seizure.” Litchfield v. State, 824 N.E.2d 356,
360 (Ind. 2005). The reasonableness of a search or seizure under Section 11 often
“turn[s] on a balance of: 1) the degree of concern, suspicion, or knowledge that a
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violation has occurred, 2) the degree of intrusion the method of the search or seizure
imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.”
Id. at 361.
Here, the odor that emanated from Schepers’s residence demonstrated that the
Litchfield factors—police concern that a violation of law has occurred and the extent of
law enforcement needs for protection of the public—“strongly outweigh[ed] the nature
and extent of the intrusions” on Schepers. See Holder, 847 N.E.2d at 937-40 (involving
an instance where police officers entered the defendant’s backyard, sniffed the
defendant’s cracked basement window, approached, knocked on the back door, and
eventually entered the home).
In sum, we conclude that the police officers acted reasonably when they
investigated the source of the ammonia odor, knocked on Schepers’s door, and later
entered his residence. Moreover, the police officers properly seized the evidence that
was seized when the search warrant was executed.
We therefore affirm the trial court’s denial of Schepers’s motion to suppress1 and
remand this case for trial.
FRIEDLANDER, J., and VAIDIK, J., concur.
1
As an aside, we respectfully disagree with the trial court’s decision to deny Schepers’s motion to
suppress in accordance with the inevitable discovery doctrine. The inevitable discovery rule “permits the
introduction of evidence that eventually would have been located had there been no error, for in that
instance there is no nexus sufficient to provide a taint.” J.B. v. State, 868 N.E.2d 1197, 1201 (Ind. Ct.
App. 2007). This doctrine does not apply here because we have determined that exigent circumstances
existed that justified the officers’ actions. Thus, no illegal search occurred. Holder, 847 N.E.2d at 939.
Moreover, sufficient evidence existed for probable cause and a search warrant was issued before the
police officers seized any of the evidence that was inside the residence.
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