Sullivan v. State
| Decision Date | 26 February 2001 |
| Docket Number | No. 82A05-0009-CR-397.,82A05-0009-CR-397. |
| Citation | 748 N.E.2d 861 |
| Parties | Little Bear SULLIVAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Conor O'Daniel, Evansville, Indiana, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Appellant-defendant Little Bear Sullivan ("Sullivan") appeals from his convictions for manufacturing a schedule II controlled substance,1 a Class B felony, possession of a schedule II controlled substance,2 a Class D felony, and criminal recklessness,3 a Class B misdemeanor. We affirm.
Sullivan raises four issues for our review, which we consolidate and restate as follows:
I. whether the trial court erred in denying his motion to suppress;
II. whether the trial court erred in denying his motion to discharge the panel of jurors; and
III. whether the trial court erred in sentencing him.
On March 2, 2000, police officers responded to a complaint that Sullivan's house had a strong odor of anhydrous ammonia and possibly contained a narcotics lab. Evansville police officers Michael Jolly ("Jolly") and Tony Mayhew ("Mayhew") went to Sullivan's house and saw a clear carafe and a fanny pack on the front porch. The carafe had a strong odor and contained a substance that was separated into three layers: a milky liquid with a white pill dough in the bottom, a greenish-clear liquid, and a yellow oily layer on top. The officers knocked on the door, and Sullivan answered after approximately forty-five seconds. Sullivan refused to allow the officers to enter his house, but he did speak with them on the front porch. Sullivan permitted the officers to look in the fanny pack that was lying on the porch, which contained tubing with white crystalline residue and valves.
The officers then called Officer Jerry Tooley ("Tooley"), a narcotics detective, to the scene. Tooley spoke with Sullivan and asked for consent to enter the residence, which Sullivan refused. Sullivan informed the officers that there was no one in the house and that he had some fire extinguishers and propane tanks in the house. After failing to obtain consent to enter Sullivan's home, Tooley and the other officers entered the home to perform a protective sweep, but were unable to complete the sweep because the smell of ammonia was too strong. While Tooley was getting a search warrant, Officer Chris Pugh ("Pugh") arrived at the scene and performed a field test on the contents of the carafe. The field test indicated that the substance was methamphetamine. Pugh informed Tooley of the results of the field test by telephone, and Tooley included that information in the affidavit for the search warrant. Tooley returned to the house with a search warrant and protective gear.
Upon searching the house, the officers found several items related to the manufacture of methamphetamine including a propane tank, fire extinguisher canisters, respirators, plastic scales, filters, pseudoephedrine, and a recipe for making methamphetamine. Many of the items had a white residue on them, which was later found to contain methamphetamine.
Sullivan was arrested and charged with manufacturing a schedule II controlled substance, possession of a schedule II controlled substance, and criminal recklessness. On May 1, 2000, the court held a hearing on Sullivan's motion to suppress in which he sought to suppress the evidence found in plain view outside the house and the evidence obtained pursuant to the search warrant. The trial court denied the motion. A jury convicted Sullivan on all charges, and the trial court sentenced him to a concurrent sentence of fifteen years.
Sullivan contends that the trial court erred in denying his motion to suppress. In particular, Sullivan asserts that the warrantless entry into his home was illegal and therefore tainted the search warrant and that the a search warrant was required for the carafe because it was not in plain view.
Initially, the State asserts that Sullivan has waived any error in denying the motion to suppress for failing to object to the admission of evidence at trial. Specifically, the State argues that a continuing objection is insufficient to preserve error for appeal. See Carter v. State, 634 N.E.2d 830, 833 (Ind.Ct.App.1994)
(). The trial court held a hearing on Sullivan's motion to suppress one week before trial. The trial court denied the motion. When the evidence that Sullivan sought to suppress was presented at trial, Sullivan objected by incorporating the objections from the previous hearing. The court noted Sullivan's request for a continuing objection. The case at bar is similar to Edwards v. State, 682 N.E.2d 800, 802 (Ind.Ct.App.1997), where the court concluded that when the record demonstrates that the continuing objection fully and clearly advised the trial court of the specific grounds for the objection, the defendant has preserved the error for appeal. Here, Sullivan objected at trial, and the record includes a transcript of the suppression hearing. The record reveals that the trial court was fully apprised of the grounds for Sullivan's objection, and therefore, we address Sullivan's claim on the merits.
The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion. Johnson v. State, 710 N.E.2d 925, 927 (Ind.Ct.App.1999). Upon review of a trial court's ruling on a motion to suppress evidence, we will examine the evidence most favorable to the ruling, together with any uncontradicted evidence. Callahan v. State, 719 N.E.2d 430, 434 (Ind.Ct.App.1999). We will neither reweigh the evidence nor judge witness credibility. Johnson, 710 N.E.2d at 927.
Sullivan asserts that the search warrant was the product of the officers' illegal warrantless entry4 into his home and was therefore invalid. The State argues that the search warrant was based on independent evidence sufficient to show probable cause and to justify the issuance of the search warrant. Tooley wrote a probable cause affidavit in order to obtain a search warrant. The probable cause affidavit read as follows:
During the evening hours of March 2, 2000, Evansville Police Department Motor Patrol Officers Jolley [sic] and Mayhew went to the above described residence at 2685 W. Maryland to investigate a report that illegal drugs were being produced at the residence. The officers knocked on the door and spoke with Little Bear Sullivan who was identified as the resident of 2685 W. Maryland. The officers identified themselves and advised Sullivan of the purpose of their visit and asked to come inside the residence. Sullivan denied the officers' request to enter the residence but stated that he would talk to the officers outside. Sullivan left the residence shutting the door behind him. While speaking with Sullivan at the front door of the residence, [t]he officers observed on the front porch of the residence a wine carafe containing a milky white liquid and a fanny pack. The officer's [sic] asked Sullivan what was in the fanny pack and he told them that they could look inside the fanny pack. Inside the fanny pack, the officers found a length of clear plastic tubing. The officers could see a white crystaline substance near the end of the tubing. Believing that the white milky substance in the carafe and the length of tubing with the crystaline substance was associated with the illegal manufacture of methamphetamine, the motor patrol officers requested the assistance of your affiant.
Your affiant arrived at the residence and spoke with Sullivan outside the residence. Sullivan advised your affiant that he had some tanks and fire extinguishers in the residence that he was trying to get rid of but would not give consent to search the residence. Your affiant asked Sullivan if the tanks contained anhydrous ammonia, but Sullivan refused to answer. Sullivan indicated that he could not be cooperative because threats had been made against his family. A small sample was taken from the white milky solution in the carafe. This sample was dried and field tested and a positive reaction for the presence of methamphetamine was obtained. Your affiant has received extensive training in the detection and investigation of illegal drug labs and has participated in the investigation of numerous methamphetamine labs. Your affiant is aware that in the final stages of the manufacture of methamphetamine, a length of plastic tubing is commonly used to pass hydrogen chloride gas into a solution containing the methamphetamine. This causes the methamphetamine to crystalize and come out of solution. A white crystaline residue is commonly found on the tubing used for this purpose. Sullivan advised your affiant that he had purchased the pickup truck. Sullivan seemed anxious for your affiant to look into the truck, telling him several times to go look into the truck. Sullivan refused to execute a consent to search form so the residence and truck [were] secured pending the issuance of search warrant.
Record at 87. After obtaining the warrant, the officers returned to Sullivan's home and conducted a thorough search. As noted supra, the police discovered several items relating to the manufacture of methamphetamine.
The state and federal constitutions guarantee that a court will not issue a search warrant without probable cause. U.S. CONST. amend. IV; IND. CONST. art. 1, § 11. "Probable cause to search...
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