Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the Jul 16 2013, 7:01 am
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER A. CAGE GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JERAMIE MURDOCK, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1210-CR-880
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48C03-1207-FB-1285
July 16, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Jeramie Murdock appeals his convictions and sentence for Class B felony dealing
in methamphetamine, Class D felony possession of methamphetamine, and Class D
felony maintaining a common nuisance. We affirm.
Issues
The issues before the court are:
I. whether the trial court properly admitted evidence that
was collected from Murdock’s trashcan without a
warrant;
II. whether the trial court properly admitted evidence that
was gathered inside Murdock’s residence following an
entry without a warrant; and
III. whether Murdock’s sentence is inappropriate.
Facts
On July 9, 2012, officers were dispatched to 914 East 21st Street in Anderson in
response to an anonymous phone call that someone was manufacturing
methamphetamine. Upon arrival, Officer Jacob Lewis, along with two other officers
from the Anderson Police Department, walked up to the front door and could smell “the
chemical odors” that are known to be associated with methamphetamine, based on their
training and experience. Tr. p. 13. Officer Lewis knocked on the door and saw a light in
the south window turn off immediately. The officers contacted the Madison County
Drug Task Force (“Task Force”) and secured the home from the outside until their
arrival. The Task Force officers have undergone extensive training in dealing with
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methamphetamine labs and are knowledgeable about the hazards associated with
manufacturing methamphetamine.
Task Force officers arrived and noticed the same chemical odors. The officers
saw a trashcan located near the south part of the residence placed as though it was ready
for trash collection. They opened the lid to determine whether the odors were originating
there. The officers determined the odors were not emanating from the trash, but they did
find precursors for manufacturing methamphetamine. The officers knocked on the door
and the window several times more without any response. They then entered the home
because of a risk of an explosion caused by attempting to dispose of methamphetamine or
an exposure of gasses from manufacturing methamphetamine that could cause respiratory
issues.
The officers found Murdock inside and observed several precursors to
methamphetamine, such as a Coleman fuel can and a plastic container with organic
solvent. They then applied for and received a search warrant and subsequently recovered
digital scales, a pill bottle, containers of salt, empty Sudafed blister packs, and a two-liter
plastic bottle containing ammonium nitrate, sodium hydroxide, and organic solvent
hidden in a toilet’s tank.
Murdock was placed under arrest and charged with Class B felony dealing in
methamphetamine, Class D felony possession of methamphetamine, Class D felony
possession of chemical reagents or precursors with intent to manufacture a controlled
substance, and Class D felony maintaining a common nuisance. The court eventually
dismissed the Class D Felony possession of chemical reagents or precursors charge.
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Murdock filed a motion to suppress evidence seized during the warrantless search and
seizure. This motion was denied on September 5, 2012, and Murdock filed a motion to
certify an interlocutory appeal, which was also denied. On October 1, 2012, a jury found
Murdock guilty on the three remaining counts. Murdock was sentenced to twenty years
on the Class B felony dealing in methamphetamine conviction and three years each on
the Class D felony possession of methamphetamine and Class D felony maintaining a
common nuisance convictions, to run concurrently for a total of twenty years executed.
Murdock now appeals.
Analysis
I. Search and Seizure
On appeal, we determine whether the trial court abused its discretion when it
admitted evidence obtained without a warrant. Questions regarding the admission of
evidence are left to the sound discretion of the trial court and, on appeal, we review the
court’s decision only for an abuse of that discretion. Fuqua v. State, 984 N.E.2d 709, 713
(Ind. Ct. App. 2013) trans. denied. We determine whether substantial evidence of
probative value exists to support the trial court’s ruling. Litchfield v. State, 824 N.E.2d
356, 358 (Ind. 2005). We do not reweigh the evidence and we consider conflicting
evidence most favorable to the trial court’s ruling. Id. “[U]nlike the typical sufficiency
of the evidence case where only the evidence favorable to the judgment is considered, we
must also consider the uncontested evidence favorable to the defendant.” Kelley v. State,
825 N.E.2d 420, 424 (Ind. Ct. App. 2005). Trial courts have broad discretion regarding
the admissibility of evidence. Id.
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Murdock alleges two constitutional claims. He first claims a violation of the
Indiana Constitution regarding evidence obtained from his trashcan without a search
warrant. He next claims a violation to his Fourth Amendment rights regarding the
seizure of evidence from the warrantless entry of his home.
A. The Trash Search
Murdock claims that the search of his trash without a warrant violated the Indiana
Constitution. Article I, 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.
Although the search and seizure provision of the Indiana Constitution tracks the
Fourth Amendment verbatim, our jurisprudence has focused on whether the actions of the
government were “reasonable” under the “totality of the circumstances” and not whether
there was an expectation of privacy. Fuqua, 984 N.E.2d at 714 (quoting Litchfield, 824
N.E.2d at 359). The reasonableness of a search or seizure turns on a balancing of: 1) the
degree of concern, suspicion, or knowledge that a 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. Litchfield, 824 N.E.2d at 361.
Murdock claims that his trashcan was located in the immediate area of the garage
and that the officers encroached upon the curtilage of his home when they entered the
backyard without a warrant. Murdock argues that curtilage is defined on a case-by-case
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basis and is dependent on a person’s expectation of privacy.1 However, Article I, Section
11 of the Indiana Constitution focuses on reasonableness, not expectations of privacy.
“[T]he reasonableness of an officer conduct in searching a citizen’s trash does not turn on
whether or not the police entered onto the citizen’s property. Property lines are irrelevant
to the degree of suspicion of a violation . . . .” Id. Instead, the court recognizes a two-
step analysis to determine if the trash is searchable:
First, the “trash must be retrieved in substantially the same
manner as the trash collector would take it.” Second, the
search must be based on an “articulable individualized
suspicion that illegal activity is or has been taking place,
essentially the same as is required for a ‘Terry stop’ of an
automobile.”
Fuqua, 984 N.E.2d at 714 (citations omitted).
The facts most favorable to the decision indicate that officers believed the trash
was abandoned in a manner consistent with that of someone disposing of it for trash
collection. To the extent that Murdock argues otherwise, he is improperly asking us to
reweigh the evidence. Further, the anonymous tip that led law enforcement to the
residence and the chemical odors were sufficient factors to indicate that the officers, who
were trained to recognize the smell of and deal with methamphetamine and were aware of
its dangers, had reasonable suspicion to look inside the trashcan. They reasonably
1
Murdock seems to make a separate argument under the Fourth Amendment regarding the officers’ entry
onto his curtilage and a sniff of the downstairs window of his home. A warrantless entry of the curtilage
is permitted under the Fourth Amendment when exigent circumstances exist. Holder v. State, 847 N.E.2d
930, 936 (Ind. 2006). The officers in Holder could smell an ether odor associated with methamphetamine
from a far distance, and they were justified to enter the curtilage because of the significant smell of fumes
and flammable chemicals that posed a danger to others. Id. The same is true here.
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believed that the chemical odors could be coming from the trashcan, located near the
south part of the residence, therefore, justifying a search of the trash.
B. Entry to the Residence
Murdock also alleges that a warrant was required for the police to enter his home.
Under the Fourth Amendment, a search without a warrant requires the State to prove an
exception to the warrant requirement applicable at the time of the search. Holder, 847
N.E.2d at 935 (quoting White v. State, 772 N.E.2d 408, 411 (Ind. 2002)). “However,
there are exceptions to the warrant requirement, such as when exigent circumstances
exist.” State v. Crabb, 835 N.E.2d 1068, 1070 (Ind. Ct. App. 2005). Two exigent
circumstances include “threats to the lives and safety of officers and others and the
imminent destruction of evidence.” Holder, 847 N.E.2d at 937 (citing Minnesota v.
Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 1690, (1990)).
Murdock argues that the officers “could [not] have reasonably believed that
[Murdock] or any other person was actually in any immediate danger or in need of
emergency aid.” Appellant’s Br. p. 15. He further contends that the officers did not have
probable cause to enter the home. We disagree. The officers were aware of a potential
methamphetamine lab based on an anonymous phone call they received, the strong
chemical odors that were present when they arrived, and the precursors found in the
trashcan. The officers knocked on the door and window several times and observed a
light in the residence turn off. This could lead an officer to reasonably believe that, given
the dangers associated with methamphetamine, someone inside the home was in need of
immediate assistance. Officer Jason Brizendine testified that they made the immediate
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decision to enter “[f]or the safety of anybody inside the residence and also for the safety
of everybody within the area of the residence.” Tr. p. 321. The house was located in a
residential area where other people nearby could be in danger.
Murdock cites Crabb, 835 N.E.2d at 1068, and Holder, 847 N.E.2d at 930, and
claims his circumstances differ from these cases. In Crabb, the police were investigating
an odor of ether emanating from an apartment where, officers believed, a child was
living; after finding precursors outside in a cooler, they made entry into the apartment
without a warrant. In Holder, which relies in part on Crabb, police officers were justified
to enter the defendant’s home without a warrant when told by the defendant that a small
child and two other adults were inside the home, in addition to being able to smell the
fumes of methamphetamine emanating from his house. We do not believe Holder
intended to limit its holding to only when small children are at risk under similar
circumstances. Rather, the court indicated that a threat to the lives of others, including
the officers, is generally sufficient to justify a warrantless entry. Id. at 937. The officers
were justified in entering Murdock’s residence without a warrant when they reasonably
believed that someone was manufacturing methamphetamine inside the home and
someone inside could potentially be in danger, whether it be a child or not. Likewise, the
risk of explosion threatened the safety of others in the neighborhood. This justified the
warrantless entry into Murdock’s home.2
2
Murdock also argues that circumstances did not demonstrate a reasonable belief that someone inside the
home was destroying evidence. However, we need not address this issue because the evidence most
favorable to the decision indicates that the officers were justified to enter the residence due to the risk of
harm that manufacturing methamphetamine posed to others.
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II. Inappropriate Sentence
We now assess whether Murdock’s sentence is inappropriate under Indiana
Appellate Rule 7(B) in light of his character and the nature of the offense. See
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not
require us to be “extremely” deferential to a trial court’s sentencing decision, we still
must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden
of persuading the appellate court that his or her sentence is inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest –
the aggregate sentence – rather than the trees – consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
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We first determine whether Murdock’s sentence is inappropriate based on the
nature of the offense. Murdock contends that the facts of this case did not involve any
more risk to himself or other persons than any other methamphetamine lab, and states
that no other person was present. Murdock fails to acknowledge the extreme risk of harm
he placed on others when he was manufacturing methamphetamine. The officers testified
about the various dangers of mixing the chemicals to make methamphetamine, including
the risk of explosion and health consequences from the exposure of the chemical
reagents. Murdock’s home was located in a residential neighborhood, which created a
risk of harm to those located nearby, including the police officers.
Murdock disputes the court’s reliance on his prior criminal history as the single
aggravating factor to his character. He argues that his prior offenses do not make him
“among the worst of the worst offenders.” Appellant’s Br. p. 21. However, “[w]e
concentrate less on comparing the facts of this case to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the offense for
which the defendant is being sentenced, and what it reveals about the defendant’s
character.” Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009). Murdock has a
lengthy criminal history that includes twenty-one entries in his juvenile record and
various misdemeanor and felony convictions. He has previously been placed on
probation, on in home detention, and on work release, and had violated each restriction.
The presentence investigation report places him at a high risk to reoffend. Therefore, his
prior criminal history reflects poorly on his character.
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Also, Murdock incorrectly argues that the trial court imposed the maximum
sentence of twenty years for Count I and three years for Counts II and III to run
consecutively. The court sentenced Murdock to twenty years for Count I and three years
for Counts II and III to run concurrently for a total of twenty years, hence not imposing
the maximum sentence. He further contends that his pending charges on an unrelated
matter should not have been taken into account. Even ignoring those charges, Murdock’s
criminal history is extensive. Murdock’s sentence was appropriate.
Conclusion
The evidence most favorable to the decision supports the admission of evidence
obtained during a warrantless search of the trashcan and police entry to his home without
a warrant. Murdock placed others in danger when he was manufacturing
methamphetamine and has a significant criminal history; both factors are sufficient to
hold that his sentence is not inappropriate. We affirm.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
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