Micheau v. State

• Decision Date: 16 September 2008
• Docket Number: No. 38A05-0710-CR-578.,38A05-0710-CR-578.
• Citation: 893 N.E.2d 1053
• Parties: Robert J. MICHEAU, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

893 N.E.2d 1053

Robert J. MICHEAU, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 38A05-0710-CR-578.

Court of Appeals of Indiana.

September 16, 2008.

Mark A. Delgado, Muncie, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Robert Micheau appeals his convictions for: Count I, dealing in methamphetamine as a class B felony;¹ Count II, possession of methamphetamine as a class D felony;² Count III, dealing in a sawed off shotgun as a class D felony;³ Count IV, possession of marijuana as a class A misdemeanor;⁴ Count V, possession of chemical reagents or precursors with intent to manufacture methamphetamine while armed with a firearm as a class C felony;⁵ and Count VI, attempted dealing in methamphetamine as a class A felony.⁶ Micheau raises four issues, which we revise and restate as:

I. Whether the trial court abused its discretion by admitting the evidence obtained during the search;

II. Whether Ind.Code § 35-48-4-1.1(a)(2), which governs the offense of dealing in methamphetamine, is unconstitutionally vague;

III. Whether Micheau's convictions for Counts I, V, and VI violate the prohibition against double jeopardy and Ind.Code § 35-38-1-6; and

IV. Whether Micheau's convictions for Counts I, V, and VI violate the Proportionality Clause, Article I, Section 16 of the Indiana Constitution.

We affirm in part and vacate in part.

The relevant facts follow. Micheau was on parole in Indiana as a result of a marijuana conviction in Texas. In November 2002, Steve Montrose was assigned as Micheau's parole agent. During Montrose's initial interview with Micheau, Montrose and Micheau discussed the Texas and Indiana parole rules. Micheau told Montrose that he was familiar with the rules because he had previously been on parole in Indiana.

On May 20 or 21, 2007, Montrose received an anonymous phone call that Micheau might be manufacturing and selling methamphetamine. Montrose contacted the Jay County Sheriff's Department and was informed that the Sheriff's Department had received similar information. Montrose corroborated the information with the prosecutor's office. Montrose went to the Jay County Sheriff's Department and asked for assistance in doing a "home visit" for safety reasons and "if something is found we can stop my process and start a state investigation or a county investigation." Suppression Transcript at 14. Montrose also requested police dogs.

Montrose and three or four other officers went to Micheau's residence. Micheau's mother answered the door, and one of the officers explained the situation and told her that they wanted to see where Micheau was staying. Micheau's mother showed them his room. Montrose and one of the police officers found a crossbow with bolts, some ammunition, and a combat knife in plain view.

Micheau's mother told Montrose and the officers that Micheau also used the garage and stayed in a blue camper, which was in the front yard. Jay County Sheriff's Detective David Tarter approached Micheau's mother and asked her for consent to search the buildings. Micheau's mother consented to the search. Sergeant Schlechty of the Portland Police Department ran his K-9 dog around the camper and garage, and the dog indicated the presence of narcotics in the camper and the garage. After the dog indicated the presence of narcotics, Montrose told everyone to "stop their activities and go get a warrant." Id. at 18, 36. Montrose then left. Detective Tarter and another officer applied for a search warrant for the camper and the garage, which the trial court granted.

As a result of the subsequent search, the police found the following items that are commonly used in the production of methamphetamine: pseudoephedrine, ephedrine, a strainer, a coffee grinder, hydrogen peroxide, matchbook striker plates, coffee filters, a container of lye, acetone, fuel, isopropyl alcohol, a bottle of acid, salt, glass jars, a plastic bag with white powder residue, a mirror with white powder residue, a propane cylinder connected to a burner, an electric heat source, a "stir spatula," pH strips, a pH test kit, an altered bottle, a stick with white residue, a modified turkey baster, and electronic scales. Id. at 123. The police found a sawed off shotgun in a yard cart. Inside the camper, the police found a semi-automatic handgun and a Taurus 9 millimeter handgun. The police found a plastic bag containing a white substance that was later determined to be 0.48 grams of methamphetamine. Testing also revealed liquid in two bottles contained methamphetamine. The police also found a police scanner and a camera located inside a can that was pointed towards the driveway.

The State charged Micheau with: Count I, dealing in methamphetamine as a class B felony; Count II, possession of methamphetamine as a class D felony; Count III, dealing in a sawed off shotgun as a class D felony; Count IV, possession of marijuana as a class D felony; and Count V, possession of chemical reagents or precursors with intent to manufacture methamphetamine while armed with a firearm as a class C felony. The State sought to enhance Count I because Micheau possessed a sawed off shotgun.⁷ The State amended Count I to be dealing in methamphetamine as a class A felony and amended the information to add Count VI, attempted dealing in methamphetamine as a class A felony.

On August 23, 2007, Micheau filed a motion to suppress evidence seized from his residence. Micheau argued that "[t]he entry into and search of [his] home and the subsequent seizure of the items located in [his] residence was without probable cause, without a warrant, without a valid consent, and without any exigent circumstances." Appellant's Appendix at 121. After a hearing, the trial court denied Micheau's motion to suppress.

The jury found Micheau guilty of Count I, dealing in methamphetamine as a class B felony; Count II, possession of methamphetamine as a class D felony; Count III, dealing in a sawed off shotgun as a class D felony; Count IV, possession of marijuana as a class A misdemeanor; Count V, possession of chemical reagents or precursors with intent to manufacture a controlled substance as a class C felony; and Count VI, attempted dealing in methamphetamine as a class A felony. The jury also found, with respect to Counts I and VI, that Micheau had committed the enhancement of knowingly or intentionally possessing a sawed off shotgun.

The trial court sentenced Micheau to eighteen years for Count I enhanced by ten years due to the possession of the sawed off shotgun; three years for Count II, three years for Count III, one year for Count IV, six years for Count V, and forty years for Count VI enhanced by ten years due to the possession of the sawed off shotgun. The trial court ordered that the sentences be served concurrently for an aggregate sentence of fifty years.

I.

The first issue is whether the trial court abused its discretion by admitting the evidence obtained during the search. We review the trial court's ruling on the admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind.2000). We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App. 1999), reh'g denied, trans. denied.

Micheau argues that the trial court abused its discretion by admitting the evidence obtained during the search because the search was "an investigatory search that was under the guise of a probationary search."⁸ Appellant's Brief at 8.

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." The Fourteenth Amendment makes this protection applicable to actions by state officials. Allen v. State, 743 N.E.2d 1222, 1227 (Ind.Ct. App.2001) (relying on Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)), reh'g denied. Generally, searches should be conducted pursuant to a warrant supported by probable cause. Id. (relying on Purdy v. State, 708 N.E.2d 20, 22 (Ind.Ct.App.1999)). "However, the United States Supreme Court has determined that `[a] State's operation of a probation system . . . presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.'" Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)).

"This court has held that a probationer is entitled to limited protection of his privacy interests." Allen, 743 N.E.2d at 1227 (relying on Polk v. State, 739 N.E.2d 666, 669 (Ind.Ct.App.2000)). "Indeed, the Fourth Amendment requires that a search of a probationer's home be reasonable." Id. (relying on Purdy, 708 N.E.2d at 23; Griffin, 483 U.S. at 875, 107 S.Ct. 3164, 97 L.Ed.2d 709). "[A]ffording probationers lesser protections is predicated on the premise that probation officers, or police working with probation officers, are conducting searches connected to the enforcement of conditions of probation and not for normal law enforcement purposes." Id. at 1227-1228 (quoting Polk, 739 N.E.2d at 669). When a search is not conducted within the regulatory scheme of probation enforcement, a probationer's normal privacy rights cannot be stripped from him. Id. at 1228. The State must demonstrate that a warrantless search of a probationer was a true probationary search and not an investigatory search. Id. A probation search cannot be a mere subterfuge enabling the police to avoid obtaining a search warrant. Id. Thus, cou...