Lovell v. State

• Decision Date: 12 August 2004
• Docket Number: No. 65A05-0312-CR-658.,65A05-0312-CR-658.
• Citation: 813 N.E.2d 393
• Parties: Julie A. LOVELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

813 N.E.2d 393

Julie A. LOVELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 65A05-0312-CR-658.

Court of Appeals of Indiana.

August 12, 2004.

Transfer Denied September 28, 2004.

John D. Clouse, Ivan A. Arnaez, Evansville, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Daniel Jason Kopp, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Julie Lovell appeals her convictions for dealing in methamphetamine as a class B felony¹ and possession of chemical reagents or precursors with intent to manufacture as a class D felony.² Lovell raises four issues, which we partially consolidate and restate as:

I. Whether the trial court abused its discretion by admitting evidence obtained as a result of the police search of Lovell's garbage bags into evidence;

II. Whether the trial court properly denied Lovell's motion for judgment on the evidence; and

III. Whether the evidence is sufficient to sustain Lovell's convictions for dealing in methamphetamine as a class B felony and possession of chemical reagents or precursors with intent to manufacture as a class D felony.

We affirm in part and reverse in part.

The relevant facts follow. On March 6, 2003, Posey County sheriffs deputies went to a residence on Old Blairsville Road in Posey County, Indiana. When the deputies approached the residence, they noticed a strong smell of ether. They knocked on the front door, but there was no answer. One of the deputies parked his marked police car in a nearby parking lot so that he could observe the residence, and a short time later, the deputy observed four individuals, including Lovell, exit the residence and get into two separate vehicles.

Posey County Narcotics Unit Officer Terry Cooper and Deputy Jim Reeves were called to assist. Upon arriving at Lovell's residence, they noticed the odor of ether coming from the residence. The officers also saw three bags of trash next to the mailbox. The officers took the three trash bags, transported them to the Posey County Jail, and examined the contents of the trash bags for evidence of illegal drug activity. The officers found evidence of methamphetamine manufacture, sale, and use. Specifically, the officers found a plastic bag with the corners cut off on the end, burnt aluminum foil with residue, a hydrochloric generator, a piece of a rubber hose, batteries, which had their lithium removed, a receipt for "Liquid Fire," numerous coffee filters, and mail addressed to Lovell. Based upon this evidence, officers obtained a search warrant for Lovell's residence.

Officers then executed the search warrant. The officers searched a vehicle registered to Lovell, and inside the vehicle, officers found a red air tank, which smelled of anhydrous ammonia. The officers also searched the area surrounding the residence and found a green thermos,³ two starting fluid ether cans that had been punctured to extract the ether, white paper, which had been extracted from a lithium battery in order to obtain the lithium, and a plastic bag with a white powder residue. Inside the kitchen, officers found a coffee filter with residue, pieces of aluminum foil with residue, Morton Salt, Hi-Top Salt, Epsom Salt,⁴ and a smoking hydrochloric generator with residue. Inside the bedroom, officers found a bowl with a residue, later identified as methamphetamine, two capsules with white powder, and an ink pen, which had been altered for methamphetamine use. Inside the bathroom, officers found a half-full bottle of Liquid Fire, and inside the living room, officers found a pair of scissors with burn marks on it. Based upon this evidence, the officers concluded that methamphetamine had been manufactured at this location.

The State charged Lovell with dealing in methamphetamine as a class B felony and possession of chemical reagents or precursors with intent to manufacture as a class D felony. Prior to trial, Lovell filed a motion to suppress the evidence seized as a result of the search of the three garbage bags and the evidence seized pursuant to the subsequent search warrant. After a hearing, the trial court denied Lovell's motion. During the trial, Lovell made a continuing objection to the evidence that was the subject of her motion to suppress. After the State's case in chief, Lovell made a motion for judgment on the evidence, arguing that:

Now on Count I, as I look at the statute, actually one of the definitions.... Preliminary Instruction "F", which was given to the jury, it states, "Manufacture means....", and we go down to the last paragraph. "It does not include the preparation, compounding, packaging or labeling of a controlled substance by practitioner or (b) by a practitioner....", and so on. Now the State has the burden of proof on absolutely everything. They have the burden of proof as to the manufacturing, but they also have the burden of proof to show that she does not fit under this exception. And I believe that the failure to show that she does not fit in that exception, if this were to go to the jury, there would be no evidence at all. Now Ms. Lovell does not have a duty to do anything in this case. The entire burden is upon the State. So as to Count I, they did not put on any evidence to show that she does not .. that she fits .. they did not ... they put in absolutely no evidence to show that the last portion of "F" would apply or not apply. Basically that area is blank, and when it is written into the definition, that is almost considered part and parcel of elements.... We believe that they failed to meet all the elements of the case. They failed to meet the requirements of the definition of manufacturer, and therefore, there must be a directed verdict on Count I.

Id. at 198-199. The trial court denied Lovell's motion for judgment on the evidence, noting that:

The Court finds that the State does not have to disprove exceptions to the statute unless there is evidence produced that would require counter evidence.

For example, in this case, unless there was some evidence that [Lovell] was, in fact, a practitioner or working under the direction of a practitioner. So the Court is going to overrule the Motion for Judgment on the Evidence.

Id. at 201. The jury found Lovell guilty as charged, and the trial court sentenced her to ten years in the Indiana Department of Correction.

I.

The first issue whether the trial court abused its discretion by admitting evidence obtained as a result of the police search of Lovell's garbage bags into evidence. The admission of evidence is within the sound discretion of the trial court. Hyppolite v. State, 774 N.E.2d 584, 592 (Ind.Ct.App.2002), trans. denied. The decision to admit evidence will not be reversed absent a showing of manifest abuse of discretion resulting in the denial of a fair trial. Id. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id.

Lovell argues that the search of her garbage bags violated Article I, Section 11 of the Indiana Constitution, which provides that:

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.

When evaluating a search or seizure under Article I, Section 11, we must determine whether under the totality of the circumstances the State's intrusion was reasonable. State v. Stamper, 788 N.E.2d 862, 865 (Ind.Ct.App.2003), trans. denied.

In Moran v. State, 644 N.E.2d 536, 537 (Ind.1994), our supreme court addressed the issue of whether police conduct in taking and examining trash put out for pickup was consistent with the protection afforded by the Indiana Constitution. There, police officers searched several plastic garbage cans that were approximately one foot from the street in front of a house and near the mail box. Id. at 538. The garbage cans had been set out for trash pickup, which was scheduled for that day. Id. Moran filed a motion to suppress the evidence seized as a result of the search of the garbage cans. Id. at 537. The trial court denied his motion, we affirmed, and our supreme granted transfer. In addressing this issue, our supreme court noted that:

We do not lightly entertain intrusions on those things that we regard as private, i.e. concealed and hidden. However, at the same time the inhabitants of this state have always valued neighborliness, hospitality, and concern for others, even those who may be strangers. Here, an open front walk leading to the front porch of a house is accurately judged by the passerby to be an open invitation to seek temporary shelter in the event of a sudden downpour. Stepping on that part of a yard next to the street or sidewalk to seek shade from a tree or to pick edible yet valueless plants growing in the lawn has been regarded proper conduct. It is permissible for children at play on the street or in the alley to examine the contents of garbage cans to find interesting items, so long as they do not make a mess. It is not infrequent that valuable items are placed in the trash in hopes that someone passing by will see them there and will take them and make good use of them. It has often been said that if you do not want others to know what you drink, don't put empties in the trash. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.

(internal footnotes and quotations omitted). Our supreme court also acknowledged that "Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside." Id. However, our supreme court concluded that the curbside search...