Holder v. State

Decision Date26 January 2005
Docket NumberNo. 87A05-0402-CR-94.,87A05-0402-CR-94.
Citation824 N.E.2d 364
PartiesScott S. HOLDER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Frank R. Hahn, Law Office of John Burley Scales, Boonville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Chief Judge.

Scott S. Holder brings this interlocutory appeal of the trial court's denial of his motion to suppress evidence discovered in a search of his home. He contends that the evidence is inadmissible because it was obtained in violation of Article 1, Section 11 of the Indiana Constitution.1 We restate the relevant issue as: whether police officers performing an investigation act reasonably when, without first obtaining a warrant, they enter onto an individual's property and position themselves near house windows in order to ascertain the source of an odor.

We reverse.

FACTS AND PROCEDURAL HISTORY

On January 14, 2003, Boonville Police Officer Jonathan Bruner was patrolling in Holder's neighborhood when he detected a strong odor of ether. He drove around trying to locate the source of the odor and, after about fifteen minutes, determined the area from which the odor was emanating and contacted his supervisor, Lieutenant Mark Hadley. Hadley and Chief Harmon joined Bruner and confirmed his observation of the ether odor. The officers walked through the neighborhood and noticed a pickup truck with its hood up at the back of Holder's property. They approached the vehicle, walking past Holder's house and into his backyard because Bruner thought the smell might have been emanating from the vehicle. The officers did not see any cans of starting fluid (ether) nearby, so they went to a neighbor's house and knocked, but no one answered. The officers returned to Holder's house, and as they passed along the south side of the house, Bruner noticed a cracked basement window. When he knelt down at the window, he smelled the ether very prominently. Harmon knocked at the front door, but no one answered. Bruner and Harmon then knocked at the back door, and again no one answered. Holder then appeared in the window of the back door, quickly looked out from behind the curtain, and disappeared. About ten seconds later, he opened the door, stepped outside, and shut the door behind him. The officers detected the smell of ether from within the home when Holder opened and shut the door.

When confronted by the officers about the ether odor, Holder denied smelling it. Officers then elicited from Holder that he had charges pending for manufacturing methamphetamine. The officers asked Holder for consent to search the home, but Holder refused to consent and told the officers that they should get a warrant. Hadley then contacted a Boonville detective to process a warrant.

Holder attempted to reenter his home, stating that he would wait inside until officers obtained the warrant. Bruner then told Holder it would be best if he waited outside. Holder replied that he could not wait outside because his three-year-old granddaughter was inside, and he needed to care for her. Bruner asked if anyone else was in the home, and Holder told him that two adults were inside. Bruner and Harmon determined that they needed to go inside the home and entered it while Holder and Hadley stayed outside. Harmon went to the kitchen area, and Bruner went to the basement door which was draped with a blanket. Bruner pulled the blanket back and identified himself. Although no one answered, Bruner saw someone's feet at the bottom edge of the door. He ordered the person to come out, and Michael Elpers exited and joined Harmon in the kitchen. Bruner entered the basement to conduct a safety sweep and discovered items used in the manufacture of methamphetamine, including several containers of starting fluid, blenders containing a liquid, a mirror, and a powder substance. Bruner informed Harmon of the items in the basement, and Harmon instructed Hadley to place Holder in handcuffs. During a search of Holder's person, officers discovered a bottle containing a substance wrapped in a baggie. The officers then learned that the home was outside the city limits and contacted the Warrick County Sheriff's Department to complete the investigation. Deputy Jason Vandivier and another officer arrived on the scene and assumed control of the investigation. After Boonville officers conveyed what had transpired, Vandivier went to the basement and photographed it. Vandivier then left, obtained a warrant, and conducted a complete search of the home.

Holder filed a motion to suppress the evidence found in the search, arguing that the search was unconstitutional. After a hearing, the trial court denied the motion to suppress. The trial court certified its decision on the motion to suppress for interlocutory appeal, and Holder perfected this appeal.

DISCUSSION AND DECISION

Holder brings this interlocutory appeal of the trial court's denial of his motion to suppress evidence discovered in the search of his home. He contends that the evidence is inadmissible because it was discovered in violation of Article 1, Section 11 of the Indiana Constitution.

We review the trial court's ruling on a motion to suppress in a manner similar to other sufficiency questions. Jackson v. State, 785 N.E.2d 615, 618 (Ind.Ct.App.2003), trans. denied; Divello v. State, 782 N.E.2d 433, 436 (Ind.Ct.App.2003), trans. denied; Crabtree v. State, 762 N.E.2d 241, 244 (Ind.Ct.App.2002). We affirm if substantial evidence of probative value supports the trial court's decision. Jackson, 785 N.E.2d at 618; Divello, 782 N.E.2d at 436. We neither reweigh the evidence nor judge the credibility of witnesses. Burkett v. State, 785 N.E.2d 276, 278 (Ind.Ct.App.2003); Divello, 782 N.E.2d at 436. Rather, we consider the evidence most favorable to the ruling together with any adverse evidence that is uncontradicted. Burkett, 785 N.E.2d at 278; Divello, 782 N.E.2d at 436.

The purpose of Article 1, Section 11 of the Indiana Constitution is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001); State v. Moore, 796 N.E.2d 764, 767 (Ind.Ct.App.2003),trans. denied (2004). Analysis under Article 1, Section 11 of the Indiana Constitution requires examination of the specific facts of each case and whether police conduct is reasonable in light of the totality of the circumstances. Scott v. State, 803 N.E.2d 1231, 1236 (Ind.Ct.App.2004); VanWinkle v. State, 764 N.E.2d 258, 266 (Ind.Ct.App.2002),trans. denied. Each case must be considered upon its own facts to decide if the police behavior was reasonable. Mitchell, 745 N.E.2d at 786; Moore, 796 N.E.2d at 767. In order to guarantee the people against unreasonable searches and seizures, the provision must receive a liberal construction in its application. Mitchell, 745 N.E.2d at 786; Moore, 796 N.E.2d at 767. The State bears the burden of proving that the search, that is, the intrusion, was reasonable under the totality of the circumstances. Mitchell, 745 N.E.2d at 786; Moore, 796 N.E.2d at 767.

Here, Bruner testified at the hearing on the motion to suppress that he walked up a driveway past Holder's residence to the backyard area to investigate whether there were ether cans near the pick up truck parked behind Holder's house. After getting no response at the neighbor's home, he noticed that a basement window in Holder's home was cracked. He testified that he knelt down and smelled at the window. However, he did not testify as to how he positioned himself to accomplish this, other than that he was on Holder's property at the time. Thus, the State did not establish whether Bruner stayed on a pathway or traversed Holder's lawn or landscaping to access the window. Moreover, the record does not establish how far the window was from the areas of Holder's yard that the public could be expected to use, nor does it show how close to the window Bruner came when he smelled at it. In short, it is simply unclear from the record before us that Bruner's actions were reasonable, i.e., that he stayed in the areas which Holder could reasonably expect visitors and members of the public to use. Because the State failed to meet its burden to prove that Bruner's actions were reasonable when he positioned himself to smell the odor emanating from the basement window, it failed to demonstrate that the officer's actions comported with Section 11. Accordingly, the evidence obtained from the search should have been suppressed.

Reversed.

ROBB, J., concurs with separate opinion.

BAKER, J., dissents with separate opinion.

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 Holder's 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...

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