Holder v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frank R. Hahn Steve Carter
Law Office of John Burley Scales Attorney General of Indiana
Boonville, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 87S05-0505-CR-194

SCOTT S. HOLDER, Appellant (Defendant below),

v.

STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________

Interlocutory Appeal from the Warrick Circuit Court, No. 87C01-0301-FB-6
The Honorable David O. Kelley, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 87A05-0402-CR-94
_________________________________

May 18, 2006

Dickson, Justice.

In this interlocutory appeal, the defendant, Scott S. Holder, challenges the trial court's
denial of his motion to suppress evidence of a methamphetamine laboratory, finished metham-
phetamine product, and reagents and precursors of the drug found in his home and on his person
on January 14, 2003. He was charged with four counts related to the manufacture and possession
of the drug and paraphernalia, one count of maintaining a common nuisance, and one count of
neglect of a dependent. The Court of Appeals reversed. Holder v. State, 824 N.E.2d 364 (Ind.
Ct. App. 2005). We granted transfer, Holder v. State, 831 N.E.2d 745 (Ind. 2005), and we now
affirm the trial court's denial of the defendant's motion to suppress.
 The defendant asserts that the evidence should be suppressed because it violated the un-
reasonable search and seizure provisions in Article 1, § 11, of the Indiana Constitution, and the
Fourth Amendment to the Constitution of the United States. The defendant challenges two spe-
cific acts by the police. First, the defendant seeks suppression of the evidence discovered after
police came upon his residential property without a warrant and sniffed at his basement window
to find the source of an odor of ether they had detected in the neighborhood. 1 Second, the de-
fendant argues that evidence must be suppressed where, subsequent to the sniff and in spite of
the defendant's refusal of consent to entry into his home, the police entered without a warrant and
in the absence of exigent circumstances or other justification.

The defendant's arrest resulted from the work of officers from the Boonville, Indiana, Po-
lice Department on January 14, 2003. At the suppression hearing, Officer Jonathan Bruner testi-
fied that he was patrolling the city in his squad car when he detected the strong odor of ether in
the air. For about fifteen minutes, he drove up and down the streets of the nearby two- or three-
block area in an effort to find the source of the odor and then returned to the point where he first
detected the scent. Believing that he had discovered the possible area from which the odor was
being radiated, Officer Bruner called Lieutenant Mark Hadley, who arrived on the scene shortly
thereafter accompanied by Boonville Police Chief Joe Harmon. The additional two officers also
believed that they smelled ether in the air, and they joined Officer Bruner in a walk through the
neighborhood. They began walking behind two residences on the defendant's street and deter-
mined after a brief period that the odor appeared to be near the defendant's house. The point
where Officer Bruner first smelled ether was approximately one hundred yards and downwind
from the defendant's house.

Officer Bruner could smell a strong odor of the chemical as he approached the house, and
he and the other officers also spotted a pickup truck behind it parked on a concrete slab with the
hood up. Officer Bruner explained that the truck was parked behind the defendant's house and to

1
Ether is a chemical commonly known among law enforcement to be employed in the manufac-
ture of methamphetamine. The Indiana General Assembly has made it a Class D felony to possess ether
along with another listed precursor or chemical reagent with intent to manufacture methamphetamine.
See Ind. Code §§ 35-48-4-14.5(a), (e).

2
the east and that he believed a driveway ran from the slab along the south side of the house to the
street. 2 The officers suspected that open containers of starting fluid, a product consisting largely
of ether, could be near the truck, but upon inspection, they found none. Ruling out the truck, but
still noticing the strong odor as the officers approached the defendant's home, Officer Bruner
checked around the defendant's property, eventually sniffing near a cracked basement window on
the side of the house, where he detected a very strong odor of ether emanating from it.

Chief Harmon then knocked on the front door, but there was no answer. He went to the
back door and knocked, and the defendant peeked through the window, waited about ten sec-
onds, and opened the door, resulting in a rush of ether fumes outside. He stepped outside and
closed the door behind him. The officers informed the defendant that they had detected a strong
odor of ether coming from his house. The defendant denied smelling anything but volunteered
that he had been charged with manufacturing methamphetamine in an adjacent county. The offi-
cers requested the defendant's consent to search the house, but the defendant refused and told
them to get a warrant. Lieutenant Hadley then placed a call to get a warrant started, and the
other officers continued further discussion with the defendant. In response to the officers' advice
that the defendant stay outside with them while they waited for the warrant, the defendant in-
formed them that his infant granddaughter and two adults were in the house, whereupon the po-
lice entered the home without the warrant. Based upon the officers' initial observations, a war-
rant was eventually obtained by the Warrick County Police Department, and their resulting
search disclosed a methamphetamine lab, precursors, finished methamphetamine, and drug para-
phernalia.

2
Officer Bruner testified during the suppression hearing with the aid of a diagram. Portions of
his testimony caused it to appear that he was pointing to the diagram as he spoke, and his use of the visual
aid caused some relevant parts of his description of the area surrounding the defendant's home to be ex-
cluded from the transcript. The diagram used in the hearing was not included in the record, but it may be
gathered from the officer's testimony that the defendant's house was situated so that the front, street-side
of the house faced west. And the officer's description of the pickup truck parked "to the east" on a con-
crete slab that he believed to be connected to a drive along the house at "the south part all the way back"
suggests that a driveway ran from the street along the south side of the house to the concrete slab in the
back near the southeast corner of the house. Tr. at 12. Officer Bruner then testified that the cracked
basement window was "on the south side of the house . . . on the west side." Id. at 13. This testimony
and his report's description of the window "on the southwest corner of the home" places the window on
the south side of the house, facing the driveway, and toward the front of the house. Appellant's App'x. at
89.

3
 We review the trial court's denial of the defendant's motion to suppress based upon a
standard similar to that employed for other sufficiency of evidence considerations. The Court
will consider the evidence favorable to the trial court's ruling, as well as substantial uncontra-
dicted evidence to the contrary, to decide whether the evidence is sufficient to support the ruling.
Murphy v. State, 747 N.E.2d 557, 559 (Ind. 2001); Ogle v. State, 698 N.E.2d 1146, 1148-49
(Ind. 1998).

The federal Fourth Amendment and Article 1, Section 11, of the Indiana Constitution
protect citizens from unreasonable searches and seizures. 3 In spite of the similarity in structure
of the federal and state constitutional provisions, interpretations and applications vary between
them. State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004); State v. Gerschoffer, 763 N.E.2d
960, 963 (Ind. 2002); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Brown v. State, 653
N.E.2d 77, 78, 79 (Ind. 1995). "The Indiana Constitution has unique vitality, even where its
words parallel federal language." Gerschoffer, 763 N.E.2d at 965 (citing Ajabu v. State, 693
N.E.2d 921, 929 (Ind. 1998)). When we interpret language in our state constitution substantially
identical to its federal counterpart, "we may part company with the interpretation of the Supreme
Court of the United States or any other court based on the text, history, and decisional law elabo-
rating the Indiana constitutional right." Ajabu, 693 N.E.2d at 929. Based on this principle and
that the defendant has alleged both federal and state constitutional violations and supported the
allegations with separate analyses, we engage in independent examinations of the defendant's
claims based upon Section 11 and the Fourth Amendment.

Fourth Amendment

The defendant first contends that when the police went to his basement window to sniff
for ether, they invaded the curtilage of his home without a warrant, thereby conducting a search
prohibited by the Fourth Amendment. Without such an invasion, the defendant maintains, the

3
The Fourth Amendment to the United States Constitution proclaims, "The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, . . . ." U.S. CONST. amend. IV. Section 11 in the Indiana Bill of Rights states, "The right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or sei-
zure, shall not be violated . . . ." IND. CONST. art. 1, § 11.

4
police would not have been able to pinpoint his home as the source of the smell of ether wafting
in the air of his neighborhood.

Searches performed by government officials without warrants are per se unreasonable
under the Fourth Amendment, subject to a "few specifically established and well-delineated ex-
ceptions." Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967). A
search without a warrant requires the State to prove an exception to the warrant requirement ap-
plicable at the time of the search. White v. State, 772 N.E.2d 408, 411 (Ind. 2002).

To trigger Fourth Amendment protections, a search arises out of an intrusion by a gov-
ernment actor upon an area in which a person maintains a "reasonable expectation of privacy."
Katz, 389 U.S. at 360, 88 S.Ct. at 516, 19 L.Ed.2d at 587 (Harlan, J., concurring). Therefore,
whether Fourth Amendment protections should be applied embraces a two-part inquiry: (1)
whether a person has "exhibited an actual (subjective) expectation of privacy;" and (2) whether
"the expectation [is] one that society is prepared to recognize as 'reasonable.'" Id. at 361, 88
S.Ct. at 516, 19 L.Ed.2d at 588. "Thus a man's home is, for most purposes, a place where he ex-
pects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders
are not 'protected' because no intention to keep them to himself has been exhibited." Id.

The land immediately surrounding and associated with a home, the curtilage, also merits
the Fourth Amendment protections that attach to the home. Oliver v. United States, 466 U.S.
170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984). The curtilage is defined on a case-
by-case basis by reference to factors that determine whether a person's expectation of privacy in
the area adjacent to the home is reasonable and analysis whether the area embraces the intimacy
associated with the sanctity of the home and privacies of life. Id.; United States v. Dunn, 480
U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326, 334 (1987). Thus defining the curtilage
requires more than an identification of the physical area immediately adjacent to the home;
whether the area is enclosed, how it is being used, and the steps taken to keep it out of view are
also analyzed to determine whether a person has a reasonable expectation of privacy in the area,
demonstrating that it embraces the characteristics similar to those associated with the sanctity of
the home. See Dunn, 480 U.S. at 301, 107 S.Ct. at 1139, 94 L.Ed.2d at 334-35; California v.

5
Ciraolo, 476 U.S. 207, 212-13, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210, 216 (1986). This required
approach for defining the curtilage is consistent with the principle that "the Fourth Amendment
protects people, not places." Katz, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582.

It is unclear from the record whether the officers encroached the curtilage to the defen-
dant's home to sniff at the basement window. Officer Bruner detected the smell of ether from as
far away as one hundred yards. That the smell was escaping through an opening in a basement
window and was identifiable from far away suggests that the defendant did not take appreciable
steps to keep the activities around the window private. On the other hand, although the ether
smell emanating from the cracked window suggested the nature of activity conducted inside, it
did not reveal anything about how the area just outside the window, which was the area actually
invaded by the officer to perform the sniff, was being used by the defendant. Also unclear is
whether the defendant had made any attempt to keep the area private by installing an artificial
boundary, such as a hedge, fence, or other landscaping work, near the window. And we cannot
comprehend from the record whether Officer Bruner had to step off of the driveway and onto
some other terrain in order to stoop near the window.

But regardless of the condition of the area around the window and whether it was demon-
strative of an effort by the defendant to keep it private, and regardless whether Officer Bruner
had to step off of the driveway in order to sniff at the window, a warrantless intrusion upon a
curtilage may be permissible under the Fourth Amendment if it fits within one of the established
exceptions. See Katz, 389 U.S. at 357, 88 S.Ct. at 514, 19 L.Ed.2d at 585. One exception allows
police to dispense with the warrant requirement in the presence of exigent circumstances. The
warrant requirement becomes inapplicable where the "'exigencies of the situation' make the
needs of law enforcement so compelling that the warrantless search is objectively reasonable un-
der the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 2414, 57
L.Ed.2d 290, 301 (1978). Among the exigencies that may properly excuse the warrant require-
ment are threats to the lives and safety of officers and others and the imminent destruction of
evidence. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85, 95
(1990). Law enforcement may be excused from the warrant requirement because of exigent cir-
cumstances based on concern for safety as long as the State can prove that a delay to wait for a

6
warrant would gravely endanger the lives of police officers and others. Warden v. Hayden, 387
U.S. 294, 298-99, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782, 787 (1967); see also Geimer v. State,
591 N.E.2d 1016, 1019 (Ind. 1992).

The Court of Appeals recently decided State v. Crabb, 835 N.E.2d 1068 (Ind. Ct. App.
2005), where it determined that a complaint from neighbors about a chemical odor, police officer
detection of the same odor and identification of it as ether, an indication that people were inside,
and credible evidence that among those people was a small child, combined to form exigent cir-
cumstances permitting the warrantless entry into the defendant's house. Id. at 1070. This deter-
mination was based on the officers' knowledge that ether is used in the manufacture of metham-
phetamine and that it is flammable and explosive and can have damaging effects on people, such
as numbing of the senses and a loss of consciousness. Id. at 1071.

We agree with the Court of Appeals analysis in Crabb. Akin to the circumstances for the
police in Crabb, the exigencies of the situation before Officer Bruner and the other policemen in
this case created the need to find the source of the ether odor, which led them to walk across the
private property of several residents in the neighborhood and ultimately crouch near the defen-
dant's basement window to take a sniff. Before sniffing at the window, the evidence shows that
Officer Bruner possessed knowledge of the following: from about one hundred yards, he sensed
the smell of ether, Tr. at 6; more than fifteen minutes later, the two other officers confirmed the
odor still in the air, Tr. at 10-11; from where the officers parked, the smell appeared to be com-
ing from the direction of the defendant's house, Appellant's App'x. at 89; the smell did not origi-
nate from a parked truck nearby, Tr. at 11-12; ether is flammable and explosive, and, in fact, it is
designed to be flammable for at least one of its intended purposes, Tr. at 36-37; and the amount
of ether required to fill the air enough to be detected from such a great distance and over such a
long period of time is much greater than is used for the chemical's intended purpose, Tr. at 36-
40.

The significant degree of the fumes from a known explosive and flammable chemical in a
residential area compelled the officers to find its source for the sake of the safety and health of
the nearby residents. Thus exigent circumstances existed allowing the officers to search the area

7
for that purpose. The scope of this search was required to "be 'strictly tied to and justified by' the
circumstances which rendered its initiation permissible." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct.
1868, 1878, 20 L.Ed.2d 889, 904 (1968) (quoting Hayden, 387 U.S. at 310, 87 S.Ct. at 1652, 18
L.Ed.2d at 794 (Fortas, J., concurring)). The officers walked across residential lawns and around
the defendant's property before stooping outside the window, which describes conduct strictly
geared toward the discovery of the source of the ether smell and, therefore, within the permissi-
ble scope of the warrantless search.

The defendant attempts to support his assertion that the Fourth Amendment invalidates
the sniff at his window by relying almost exclusively on the Court of Appeals decision in Divello
v. State, 782 N.E.2d 433 (Ind. Ct. App. 2003), trans. denied. Divello also involved the detection
of drug activity by smell and the trespass onto the defendant's curtilage by police, but the cases
are otherwise distinguishable. See id. at 439. In Divello, the police went to the defendant's
house to follow up on an anonymous tip that marijuana was being grown there. Id. at 437. Upon
receiving no answer to their knock at the front door, the police walked to a place in between the
defendant's house and driveway and sensed the smell of marijuana escaping. Id. at 439. There
was no evidence that exigent circumstances compelled the police to trespass this portion of the
defendant's property. And the court concluded that the police did not detect the smell from a
place they had a lawful reason to be. Id. at 437.

Officer Bruner, on the other hand, did have a legitimate reason under the Fourth Amend-
ment to be near the defendant's basement window, for his presence there was within the permis-
sible scope of a search of the defendant's property outside his house compelled by exigent cir-
cumstances that required discovery of the source of dangerous fumes wafting about the
neighborhood. As a result, sufficient evidence supported the trial court's conclusion that evi-
dence should not be suppressed on account of the police sniff outside the defendant's basement
window. Such conduct was not unreasonable under the Fourth Amendment.

The defendant next argues that exigent circumstances did not justify the warrantless entry
of his house after he spoke with the police outside his back door. According to the defendant,
there was no indication that evidence could be destroyed or that the police were motivated by a

8
concern for occupant safety sufficient to constitute exigent circumstances.

Possible imminent destruction of evidence is one exigent circumstance that may justify a
warrantless entry into a home if the fear on the part of the police that the evidence was immedi-
ately about to be destroyed is objectively reasonable. Esquerdo v. State, 640 N.E.2d 1023, 1027
(Ind. 1994). Courts will demand a genuine showing of emergency before excusing the failure to
obtain a warrant, and the State must show that law enforcement was faced with circumstances
making it impracticable to wait for a search warrant by clear and convincing evidence. Hawkins
v. State, 626 N.E.2d 436, 439-40 (Ind. 1993). Essentially, the officers must have a reasonable
belief that people within the premises are presently destroying or directly about to destroy evi-
dence, the nature of which must have an evanescent quality. Esquerdo, 640 N.E.2d at 1027
(quoting Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991)).

We agree with the defendant that the circumstances facing the police outside the defen-
dant's back door do not demonstrate clearly and convincingly a reasonable belief that people in-
side the home were destroying or were about to destroy evidence. No evidence was offered by
the State suggesting a current or imminent effort to discard evidence inside the home. For ex-
ample, the police did not testify that they heard scurrying or a rush of activity in the house evi-
dencing an attempt to take down the operation. The record also does not suggest that a metham-
phetamine laboratory could be disassembled or concealed in the time it took police, who had the
home under surveillance, to obtain a search warrant. While finished product and powders and
liquids used in the manufacture might be disposed of down a drain, other components necessary
for the manufacture of methamphetamine would nearly be impossible to remove from the prem-
ises, or even to conceal within the premises, under the circumstances.

The warrantless police entry in this case, however, was motivated by two reasons. Al-
though their primary concern appears to have been the possible imminent destruction of evi-
dence, the police were also focused upon the risk of immediate danger to a young child in the
volatile atmosphere of the home. The officers entered the home before arrival of the warrant
only after they learned of the occupants, including a young child, inside the home. Officer
Bruner described the decision to enter the home:

9
 [The defendant] stated that he had a granddaughter inside that he needed to take care of.
We asked the age of the granddaughter. I believe he said three-and-a-half years old. And
I then asked him if anyone else was in the residence and he stated he had two friends in-
side. I asked if they was over the age of twenty just being somebody that would be able
to destroy evidence. He stated yes and myself and Chief Harmon decided that with the
three-and-a-half-year-old inside, two others inside, they could possibly be destroying
evidence at that time, that we would go in the house.
Tr. at 18 (emphasis added). The expressed concern about the presence of the young child was in
addition and unrelated to the possible destruction of evidence. By the time the police officers
decided to enter the house, they had lawfully obtained the following knowledge: the odor of
ether was escaping from the basement of the house through a cracked window; the defendant did
not respond to the first knock at the door by the police, and he delayed opening the door on the
second knock for several seconds after he identified who was at the door through the window;
the strong smell from inside the home was also detected in the short time during which the de-
fendant had his door open; the defendant admitted to pending charges in another county for the
manufacture of methamphetamine; and the production of methamphetamine introduces a high
risk of explosion and fire. And then police learned that a three-year-old girl remained inside the
house. Because the officers' reasons for the warrantless entry included their concern for substan-
tial risk of immediate danger to an occupant from the highly flammable and explosive atmos-
phere in the home, their warrantless entry was justified by exigent circumstances.
Several courts have concluded that a belief that an occupied residence contains a
methamphetamine laboratory, which belief is found on probable cause based largely on observa-
tion of odors emanating from the home, presents exigent circumstances permitting a warrantless
search for the occupants' safety. See, e.g., Kleinholz v. United States, 339 F.3d 674, 676-77 (8th
Cir. 2003) (concluding that the "volatile nature of [methamphetamine] labs . . . justified an im-
mediate but limited search" by exigent circumstances because the police had probable cause to
believe the home contained a lab); United States v. Rhiger, 315 F.3d 1283, 1289-90 (10th Cir.
2003) (concluding that the strong odor of methamphetamine production springing from a resi-
dence and an agent's knowledge about the "inherent dangerousness of an active methampheta-
mine lab" contributed to reasonable grounds for agents immediately to enter the home in order to
protect the public); United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) ("The potential
hazards of methamphetamine manufacture are well documented, and numerous cases have up-
held limited warrantless searches by police officers who had probable cause to believe they had

10
uncovered an on-going methamphetamine manufacturing operation."); United States v. Wilson,
865 F.2d 215, 217 (9th Cir. 1989) ("[F]aced with a potential disaster in the form of an ether ex-
plosion and fire . . . exigent circumstances existed because . . . a reasonable person could have
believed that immediate entry was necessary to safeguard public safety . . . ."). We agree.

We hold that an objectively reasonable belief in the immediate need to protect the public
from death or serious injury supported the officers' conclusion that exigent circumstances justi-
fied the immediate warrantless entry into the defendant's house, notwithstanding the unreason-
able search and seizure provisions of the Fourth Amendment.

Article 1, Section 11

Separate from his federal constitutional claim, the defendant asserts that the officers' war-
rantless sniff at the basement window and entry into his home violated Art. 1, § 11, of the Indi-
ana Constitution.

Our analysis of claims under Section 11 does not demand that we look to the same re-
quirements as those examined under the United States Constitution; rather, our investigation un-
der Section 11 places the burden on the State to demonstrate that each relevant intrusion was rea-
sonable in light of the totality of the circumstances. Bulington, 802 N.E.2d at 438; Gerschoffer,
763 N.E.2d at 965; Baldwin, 715 N.E.2d at 337; Brown, 653 N.E.2d at 79-80. As we consider
reasonableness based upon the particular facts of each case, the Court also gives Art. 1, § 11, a
liberal construction to angle in favor of protection for individuals from unreasonable intrusions
on privacy. Gerschoffer, 763 N.E.2d at 965. At the same time, "Indiana citizens have been con-
cerned 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 toler-
ated, 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). Our determination of

11
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 violation has occurred, 2) the degree of intru-
sion 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.

We note first that the officers detected the odor of ether from elsewhere in the neighbor-
hood, far from the defendant's home. The officers identified the smell as being ether, with a
strong intensity. They knew ether was dangerous because of the explosive and flammable nature
of the chemical. The officers were able eventually to narrow the source of the smell to a smaller
area near the defendant's home, where they observed a truck with the hood up. An investigation
of the area around the truck narrowed their search for the source even more, for there were no
containers of starting fluid near it. Knowing that the smell of ether was likely unassociated with
any work being done on the truck, the officers necessarily continued to check around the area
from which they had estimated the smell to have originated. Their discovery of ether fumes es-
caping from the defendant's basement window supported a decision to knock at the front and
back doors to satisfy the need for the police to acquaint themselves with the occupants and the
activities in which they were engaged. The defendant's release of more ether fumes into the out-
door air when he opened his door and his revelation to the officers that he had methamphetamine
charges pending in another county, along with his disclosure that others, including a child, were
present in the house, together clearly demonstrate two of the three Litchfield balancing factors—
police concern that a violation of law has occurred, and the extent of law enforcement needs for
protection of the public.

These two considerations strongly outweigh the nature and extent of the intrusions im-
posed on the defendant, whether by the police entry into the defendant's yard and their sniff at
the defendant's cracked basement window, or by their approach and knock upon his back door,
or by their eventual entry into the home. This is not a case of an individual police officer mo-
mentarily detecting a faint scent of ether. Here the odor was so strong and persistent that it had
pervaded the neighborhood. Investigating and exploring to find the source of the odor from a
volatile substance, the officers ultimately found that it emanated from the defendant's home from
two sources: the basement window and the rear door when opened by the defendant. This was

12
clear and substantial evidence of the presence of ether in the house.

The defendant argues, based upon Shultz v. State, 742 N.E.2d 961 (Ind. Ct. App. 2001),
trans. denied, that the knock at the back door imposed a high degree of intrusion. In Shultz, offi-
cers, while investigating a case of a stolen semi-tractor, believed they had found the missing ve-
hicle on the defendant's property and knocked at the door. Upon receiving no answer, the police
proceeded to tour the property and observed what they believed to be evidence of other stolen
vehicle parts. The Court of Appeals held that the additional search of the property was unrea-
sonable after the police had determined that nobody was home. Id. at 966. However, the facts of
that case reveal no analogy to the existence of fumes from a chemical highly dangerous to public
safety and commonly associated with the production of an illegal drug. A second attempt to see
whether anyone occupies a home from which trickles dangerous chemical fumes does not im-
pose a high degree of intrusion on the ordinary lives of citizens within the home. If instead of
ether, the smell detected by police were that of escaping natural gas, it would clearly have been
reasonable, proper, and expected for the officers to knock at the rear door of a home after the
failure of their attempt to rouse occupants at the front door.

We conclude that evidence supports the trial court's denial of the defendant's motion to
suppress based upon his claimed violation of Art. 1, § 11.

Having previously granted transfer, we affirm the trial court's denial of the defendant's
motion to suppress evidence of the methamphetamine manufacturing operation conducted in his
home. The police conduct did not violate the illegal search and seizure provisions contained in
either the Fourth Amendment to the United States Constitution or Art. 1, § 11, of the Indiana
Constitution.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

13