Scott v. State

• Decision Date: 27 February 2004
• Docket Number: No. 65A01-0307-CR-240.,65A01-0307-CR-240.
• Citation: 803 N.E.2d 1231
• Parties: Andrew J. SCOTT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

803 N.E.2d 1231

Andrew J. SCOTT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 65A01-0307-CR-240.

Court of Appeals of Indiana.

February 27, 2004.

William W. Gooden, Mt. Vernon, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Andrew J. Scott appeals his conviction for dealing in a schedule II controlled substance¹ as a Class B felony and possession of chemical reagents or precursors with intent to manufacture² as a Class D felony. Scott raises three issues on appeal, which we restate as follows:

I. Whether the trial court abused its discretion by denying Scott's motion to suppress and allowing the admission of evidence found during the execution of a search warrant on Scott's property.

II. Whether the State presented sufficient evidence to sustain Scott's conviction for possession of chemical precursors with intent to manufacture methamphetamine.

III. Whether Scott's conviction for possession of chemical precursors with intent to manufacture methamphetamine is a lesser included offense of his conviction for dealing in methamphetamine by manufacturing.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 2, 2002, Officers Mark Saltzman and John Montgomery obtained a search warrant for Scott's residence located at 8622 Welborn Road, Evansville, Posey County, Indiana. The search warrant permitted the search and seizure of ether, anhydrous ammonia, sulfuric acid, salt, lithium, starting fluid cans, and remnants of a burn pile and any other items commonly associated with a clandestine manufacturing of methamphetamine, which would include the chemical products, any glassware, or other instrumentalities used to store or process methamphetamine.

Based on the evidence discovered during the search, the State charged Scott with Count I, dealing in a schedule II controlled substance; Count II, possession of chemical reagents or precursors with intent to manufacture; and Count III, illegal possession of anhydrous ammonia or ammonia solution³ as a Class D felony. After a bench trial, Scott was found guilty of Counts I and II and not guilty of Count III. Scott now appeals.

DISCUSSION AND DECISION

I. Motion to Suppress

Scott claims that the trial court abused its discretion by denying his motion to suppress and allowing the admission of evidence found during the execution of the search warrant for his property. Specifically, Scott asserts that the search warrant was invalid because it was based upon observations made by the officers during an earlier, warrantless entry onto his property.

We review the denial of a motion to suppress in a manner similar to other sufficiency matters. Scott v. State, 775 N.E.2d 1207, 1209 (Ind.Ct.App.2002). In reviewing a motion to suppress, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Marlowe v. State, 786 N.E.2d 751, 753 (Ind.Ct.App.2003). However, unlike 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. Id. We will affirm the judgment of the trial court if it is sustainable on any legal grounds apparent in the record. Alford v. State, 699 N.E.2d 247, 250 (Ind.1998).

The first police entry on Scott's property occurred when Officer Montgomery and Officer Saltzman received a dispatch concerning a strong chemical odor emanating from a residence on Welborn Road. Officer Montgomery determined that the odor was coming from Scott's residence at 8622 Welborn Road. When Officer Montgomery arrived at Scott's property, he observed three individuals standing by a fire, which was later found to be a burn pile. Scott approached Officer Montgomery's patrol car and asked why he was there. Officer Montgomery stated that there had been a report of a strong acid smell coming from Scott's property. Scott immediately complained that he was tired of being reported to the police for chemical smells on his property. At this point, Scott told Officer Montgomery to leave unless he had a search warrant. Officer Montgomery left Scott's property but he noted empty cans in the fire and the strong smell of acid in the air while he was there.

Shortly after Officer Montgomery left the property, Indiana State Trooper Werkmeister notified Officers Montgomery and Saltzman that there was an outstanding arrest warrant for Scott. Approximately twenty minutes after Officer Montgomery's first entry on Scott's property, Officers Montgomery and Saltzman and Trooper Werkmeister returned to the property to arrest Scott. When they arrived, Scott was in front of his residence. Trooper Werkmeister and Officer Montgomery secured Scott while Officer Saltzman walked around the property. He walked from his vehicle around the east, torn out end of the mobile home; behind and between the mobile home; around the west end of the mobile home; and between the mobile home and the residence to the point where Officer Montgomery, Trooper Werkmeister, and Scott were located. Officer Saltzman was checking to see if the other two individuals that Officer Montgomery had previously seen by the fire were still there. Officer Saltzman did not see any other individuals as he walked around Scott's property. However, he saw a fire burning that contained three empty aerosol cans, which had puncture marks on the bottom. On two of the three cans, Officer Saltzman was able to read "starting fluid." See Defendant's Exhibit 2. Officer Saltzman also noticed an odor of battery acid in the air. Officer Saltzman did not have a search warrant when he walked around the property.

Subsequently, Officers Montgomery and Saltzman testified as to their observations at a hearing for the issuance of a search warrant for Scott's property. The trial court determined that probable cause existed and issued a search warrant. Following the search and discovery of various materials associated with the manufacturing of methamphetamine, Scott was charged with dealing in methamphetamine and possession of chemical precursors with intent to manufacture methamphetamine.

Here, Scott argues that the trial court improperly denied his motion to suppress because the search warrant was based on a prior warrantless search of his property. See Esquerdo v. State, 640 N.E.2d 1023, 1030 (Ind.1994)

(holding that evidence obtained during an illegal search may not be used to support a subsequent search warrant). The State maintains that the trial court properly denied Scott's motion to suppress and correctly admitted the evidence found during the execution of the search warrant because Officer Saltzman's warrantless search of the property was a protective sweep performed while Officer Montgomery and Trooper Werkmeister executed an outstanding arrest warrant on Scott.

The U.S. Constitution and the Indiana Constitution provide different tests for determining whether there has been a violation of the right to be free of unreasonable search and seizure in such circumstances. "Federal Fourth Amendment law protects citizens, ... from warrantless searches of places or items in which the individual has an actual, subjective expectation of privacy which society recognizes as reasonable." Trowbridge v. State, 717 N.E.2d 138, 143 (Ind.1999). Exceptions to the Fourth Amendment's search warrant requirement before lawful entry "include risk of bodily harm or death, aiding a person in need of assistance, protecting private property, or actual or imminent destruction or removal of evidence before a search warrant may be obtained." Harless v. State, 577 N.E.2d 245, 248 (Ind.Ct.App.1991).

Analysis under Article I, 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. See Trowbridge, 717 N.E.2d at 144

.

As discussed above, Officer Montgomery initially entered Scott's property after he received a complaint concerning a strong chemical odor emanating from the property. Scott asked Officer Montgomery to leave his property if he did not have a warrant. Officer Montgomery complied but noted that two other individuals were standing with Scott around a fire, the smell of battery acid was prominent, and cans were in the burn pile. Approximately twenty minutes later, Officers Montgomery and Saltzman and Trooper Werkmeister returned to Scott's property to execute an outstanding arrest warrant on Scott. Therefore, at the point that Scott was arrested outside of the residence, the officers suspected that Scott was manufacturing methamphetamine, which they knew to be a process that could be quickly dismantled, and which they knew to be highly volatile because of the explosive nature of the chemicals used in the manufacturing process. Additionally and importantly, the officers had reasonable suspicion to believe that the other two individuals that Officer Montgomery had seen by the burn pile were still on the property and were capable of inflicting bodily harm. The combined knowledge of the facts that the manufacture of methamphetamine can be dangerous and that there were possibly other individuals on the property that were capable of causing bodily harm would cause any reasonable police officer to see the immediate need to identify any remaining persons on the property, and insure they did not pose a risk of harm.

Here, Officer Saltzman conducted a protective sweep of Scott's property pursuant to an arrest warrant. Officer Saltzman was looking for the two individuals who were standing next to the burn pile with Scott when Officer Montgomery initially entered the property. These individuals could have posed a threat to the officers who were on the property to arrest Scott. Officer Saltzman's actions were a reasonable attempt to secure the...