Cynthiа SUGG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 31A05-1208-CR-397.
Court of Appeals of Indiana.
July 24, 2013.
Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
KIRSCH, Judge.
Cynthia Sugg (“Sugg“) was convicted after a jury trial of dealing in methamphetamine1 as a Class B felony, maintaining a common nuisance2 as a Class D felony, possession of methamphetamine3 as a Class D felony, possession of chemical precursors4 as a Class D felony, possession of marijuana5 as a Class A misdemeanor, and possession of paraphernalia6 as a Class A misdemeanor and was sentenced to an aggregate term of ten years. She appeals, raising the following consolidated and restated issue for our review: whether the trial court abused its discretion when it admitted evidence seized under the search warrant at trial beсause the evidence was discovered in violation of the Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution.
We affirm.
FACTS AND PROCEDURAL HISTORY
In 2012, Sugg and her husband, Gary Wynn (“Wynn“), lived in a rented farmhouse that was located in a rural area in Harrison County, Indiana. Steven Probus (“Probus“) was their neighbor and rented a cabin adjacent to their home. Probus was friends with Sugg and Wynn, and they visited each other often. On February 16, 2012, Sugg and Wynn each purchased a forty-eight count box of pseudoephedrine pills from the same Walgreen‘s store in New Albany, Indiana within five minutes of each other. That night, Probus smoked methamphetamine with Sugg at her home.
On February 17, 2012, Indiana State Police Detective Katrina Smith (“Detective
That morning, Sugg had been outside painting a camper when Probus walked over to visit. The two went inside to smoke a marijuana joint in the living room. As Probus left the back door to walk home, Detective Smith, Sergeant Andry, and a third trooper approached the front of the residence. Probus told the troopers that he had knocked, but no one had answered. The troopers’ approach to the front door was blocked by decorations and various items, so Detective Smith and Sergeant Andry walked around to the back door, while the third trooper stayed and talked with Probus.
Sugg was standing on the back porch in socks and no shoes and with no jacket. It was a sunny, chilly day, but a warmer than usual day for February. Detective Smith identified herself and told Suggs that the troopers were there investigating drug activity and, specifically, methamphetamine manufacturing. Detective Smith observed a gallon of muriatic acid sitting on the back porch and a bottle of charcoal lighter fluid sitting underneath a propane gas grill, both of which are precursors to manufacture methamphetamine.
Detective Smith asked Sugg about her recent pseudoephedrine purchase. Sugg said that she could not remember when she made her last purchase, but that it had been awhile. When Detective Smith refreshed her memory that it had been that week, Sugg claimed it had been a couple of days prior, at the beginning of the week. Detective Smith then asked Sugg how many pills she took per day, and Sugg told her four or five and that she had taken all of them already. Detective Smith then confronted Sugg with the beliеf that she had purchased forty-eight pills the day before, and Sugg was still not able to produce any of the pills. Sugg also claimed to not know when Wynn purchased pseudoephedrine pills and that he did not make a purchase when she did.
At that point, Detective Smith asked Sugg if they could search her residence. Sugg asked to call Wynn to talk to him, which she was allowed to do. After her phone call to Wynn, Sugg refused consent to search her residence. Detective Smith told Sugg that she was going to petition for a search warrant. Because obtaining a search warrant could take some time, and Sugg was not wearing a coat or shoes, Detective Smith told Sugg that she could go into the house to retrieve any personal items, but that she would need to be escorted by an officer to prevent the destruction of evidence or the chance to obtain a weapon. Because Sugg “was cold and really needed a cigarette,” she agreed. Tr. at 129.
As soon as she was inside the residence, Detective Smith detected the odor of burnt marijuana. While Sugg retrieved a few items, she made smаll talk about a chocolate bar she had enjoyed as a kid that she had recently been able to find. Sugg showed Detective Smith the candy bar, which was located on the living room table. When the detective looked at it, she noticed stems and seeds consistent with marijuana in an ashtray on the table.
Detective Smith and Sugg exited the house, and Detective Smith left to obtain the search warrant. Sergeant Andry and the other trooper stayed to secure the property and talk with Probus. Sugg initially sat near the driveway on a rock, but then moved to sit inside of an inoperable Jeep Cherokee that she and Wynn had recently purchased. During this time, Sugg was texting on her cell phone and smoking cigarettes.
Detective Smith completed the affidavit for the search warrant, which included the following information: the pseudoephedrine purchases by Sugg and Wynn on the previous day; Detective Smith‘s previous investigation of Sugg and Wynn for possession of precursors; the pending criminal charges against Sugg and Wynn for manufacturing methamphetamine; the fact that the officers had gone to the Sugg‘s residence for а knock and talk; Sugg‘s untruthful statements about her pseudoephedrine purchase and denial of knowledge of Wynn‘s purchase; Detective Smith‘s observation in plain view of the muriatic acid and charcoal lighter fluid on the back porch; Sugg‘s denial of consent; Detective Smith‘s entry into Sugg‘s residence so that Sugg could retrieve personal items; and Detective Smith‘s detection of the odor of burnt marijuana and observation of the stems and seeds that were consistent with marijuana. The search warrant was granted and promptly executed. Pursuant to the warrant, the officers recovered marijuana from the ashtray; four baggies of methamphetamine from inside of a magnetic key holder; a glass jar containing pseudoephedrine pill soak; a glass jar with a combination of pseudoephedrine and triprolidine; a glass jar with methamphetamine in liquid form; numerous methamphetamine precursors, including muriatic acid, acetone, HEET, charcoal lighter fluid, drain cleaner, hydrogen peroxide, and camp fuel; pH strips; latex gloves; plastic tubing; and two Walmart receipts showing the purсhase of various precursors, one found in Sugg‘s wallet and one out in the open. Sugg was arrested.
The State charged Sugg with Class B felony dealing in methamphetamine, Class D felony maintaining a common nuisance, Class D felony possession of precursors, Class D felony possession of a schedule II controlled substance, Class A misdemeanor possession of marijuana, and Class A misdemeanor possession of paraphernalia. On the first day of Sugg‘s jury trial, she filed a motion to suppress the evidence discovered pursuant to the search warrant, claiming that she was in custody, not given her Miranda warning, and then coerced into allowing the officers to enter her home. Following a hearing, the trial court denied the motion. The trial proceeded, during which the State moved to dismiss the charge of possession of a schedule II controlled substance. At the conclusion of the trial, the jury found Sugg guilty of the remaining charges. The trial court sentenced her to an aggregate term of ten years. Sugg now appeals.
DISCUSSION AND DECISION
Sugg first challenged the admission of evidence through a motion to suppress but now apрeals following a completed trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Lanham v. State, 937 N.E.2d 419, 421-22 (Ind.Ct.App.2010). The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Bradford v. State, 960 N.E.2d 871, 873 (Ind.Ct.App.2012) (citing Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002)). An abuse of discretion occurs where the decision is clearly against the
Sugg first argues that the evidence should not have been admitted because it was found in violation of the
Sugg contends that Detective Smith violated the
A knock and talk investigation involves officers knocking on the door of a house, identifying themselves as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission to search the house. Chiszar v. State, 936 N.E.2d 816, 825 (Ind.Ct.App.2010), trans. denied. Such “knock and talk” investigations do not per se violate the
Here, as the officers approached the front of Sugg‘s residence, they saw that their approach to the front door was completely blocked by boxes, decorations, and other items, and they observed Probus
Further, nothing in the interaction between Detective Smith and Sugg concerning Sugg‘s pseudoephedrine purchase would have created in a reasonable person that she was not free to leave. A person is “seized” only when, by means of physical force or a show of authority, his or her freedom of movement is restrained. Woodson v. State, 966 N.E.2d 135, 139 (Ind.Ct.App.2012) trans. denied. The test for existence of a “show of authority” is an objective one in that the question is not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer‘s words and actions would have conveyed that to a reasonable person. Id. at 140. Examples of circumstances that might indicate a seizure would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s requеst might be compelled. Id. at 139. Here, two officers approached Sugg on the back porch, and no weapons were ever displayed. Sugg was not touched by the officers, and she was not spoken to in a way that she was compelled to comply with the officers’ requests. The fact that Sugg called Wynn to talk with him about the officers’ request to search the residence and then refused Detective Smith‘s request for consent to search clearly shows that Sugg did not feel compelled to comply with the officers’ requests. Therefore, we сonclude that Sugg was not seized.7
Additionally, Sugg next contends that the officers’ restriction of Sugg‘s entrance into the residence while Detective Smith obtained the search warrant transformed the situation into a custodial one and violated the
In McArthur, a woman asked the police to accompany her to the trailer where she lived with her husband, so they could maintain the peace while she removed her belongings. Id. at 328. When she came back outside, she informed the officers that she had observed her husband hide some drugs under the couch. Id. at 329. One of the officers knocked on the door, advised the husband what they had been told, and requested consent to search the premises,
In the instant case, after Sugg refused her consent to search her residence, Detective Smith informed Sugg that she was going to petition for a search warrant. Because obtaining a search warrant could take some time and because Sugg was not wearing a coat or shoes, Detective Smith informed Sugg that she could go into the house to retrieve any personal items she might need, but that she would need to be escorted by an officer to prevent the destruction of evidence or the opportunity to obtain a weapon. Sugg agreed to be accompanied into the residence.
Under the reasoning of McArthur, we first determine whether the police had probable cause to believe that Sugg‘s home contained evidence of a crime and contraband. At the time that Detective Smith restricted Sugg‘s entry into hеr home, she had probable cause to believe that Sugg was engaged in the manufacture of methamphetamine based on Sugg‘s contradictory and untruthful statements about her and Wynn‘s purchases of pseudoephedrine, the observation of precursors in plain view on the back porch, Sugg‘s inability to produce any pseudoephedrine pills, and Sugg‘s prior, pending charges for dealing methamphetamine. Therefore, the police here had probable cause to believe that Sugg‘s home contained evidence of the crime of manufacturing methamphetamine.
Second, we look to see if the police had good reason to fear that, if left unrestrained, Sugg would destroy evidence before they could return with the warrant. Prior to leaving to obtain a search warrant, the police had been questioning Suggs about her about her recent pseudoephedrine purchase. In response, Sugg made contradictory and untruthful statements about her and Wynn‘s purchases of pseudoephedrine and claimed that she had used all of the pills already and was not able to produce any of the pills. In their conversation with Sugg, the police also asked her about the muriatic acid and charcoal lighter fluid, which are both precursors for methamphetamine, located in plain view on the porch. The police reasonably could have concluded that Sugg, suspecting an imminent search after the conversation with the police, would, if given the chance, quickly get rid of any contraband contained within the residence.8
Third, we look to determine if the police made reasonable efforts to reconcile their law enforcement needs with Sugg‘s demands of personal privacy. Here, the police, as in McArthur, neither searched the home nor arrested Sugg before obtaining the warrant. Instead, the police imposed the less strict restraint of preventing Sugg from entering the home unaccompanied. They did not disturb Sugg‘s home or belongings until a warrant was issued.
Lastly, we must determine if the police imposed the restraint for a limited period of time. Although an exact time period was not given as to how long it took from the time when Deteсtive Smith left Sugg‘s home to the time she returned with the warrant in this case, Detective Smith did testify that she petitioned a judge for the search warrant at 5:45 p.m., and she returned to Sugg‘s home with the warrant at 6:19 p.m. The evidence also showed that the search warrant was actually signed by the judge at 6:07 p.m. This time period was no longer than necessary to obtain the warrant.
Therefore, the police in this case had probable cause to believe that Sugg‘s home contained contraband, which was evidence of a crime. They reasonably believed that Sugg, if left unrestrained to enter the home, would destroy that evidence or gain access to a weapon. The police imposed a restraint that was both limited and tailored reasonably to secure the needs of law enforcement while still protecting privacy interests. Finally, the restraint was imposed for only the limited amount of time that it took to obtain the warrant. We conclude that this restraint did not violate the
Further, as we have determined that the restraint of only allowing Sugg into her home if accompanied by an officer was permissiblе under the
Sugg next contends that the evidence was obtained by the officers as a result of an illegal seizure and could not form the basis of the search warrant. The
Sugg also argues that the trial court abused its discretion in admitting the evidence because it was discovered in violation of
Here, the officers’ degree of suspicion that Sugg and Wynn were manufacturing methamphetamine was very high. Sugg and Wynn had each purchased one forty-eight-count box of pseudoephedrine the previous day from the same store and within minutes of еach other. Both Sugg and Wynn had pending charges for dealing methamphetamine, and Detective Smith knew that, during the prior investigation at the residence, methamphetamine and precursors had been found. Detective Smith‘s suspicion based on this information led her to conduct a knock and talk at Sugg‘s residence.
The degree of intrusion on Sugg‘s ordinary activities was low. When the officers arrived at Sugg‘s residence, they found her standing outside on her back porch, so they did not even have to knock on the door. The officers approached Sugg outside and observed two precursors in plain view on the back porch, which heightened the officers’ suspicion. Sugg was not restrained or restricted in her movement in any way. The officers briefly asked Sugg questions about her recent pseudoephedrine purchase and then requested her consent to search her residence after receiving untruthful and contradictory answers to their questions. Sugg then used her cell phone to call Wynn to speak with him about consenting to the search while the officers waited. The fact that Sugg was
The extent of law enforcement need to investigate whether Sugg and Wynn were manufacturing methamphetamine was high in the present case. Our Supreme Court has recognized that the process of manufacturing methamphetamine is very dangerous and poses a high risk of explosion and fire. See Holder v. State, 847 N.E.2d 930, 939-40 (Ind.2006). Investigations into methamphetamine manufacturing, therefore, include both wanting to stop the production of the drug itself, but also to stop the risk of harm that the manufacturing process causes.
In sum, the police officers had compelling evidence that Sugg and her residence were involved in the manufacture of methamphetamine. They approached Sugg outside her residence and asked her questions about her recent pseudoephedrine purchase. The officers developed probable cause from Sugg‘s untruthful and contradictory answers and the observation of two precursors in plain view on the back porch. At that time, the officers decided to obtain a search warrant and needed to secure the scene while they waited for the warrant. The fact that Detective Smith would not allow Sugg to enter the residence without an escort before the warrant could be obtained was not unreasonable. This conduct was a minimal intrusion upon Sugg‘s ordinary activities in light of the risk of destruction of evidence or obtaining a weapon. Law enforcement officials had substantial need to protect themselves during their investigatiоn and to prevent the destruction of evidence while they secured a search warrant. In short, the police officers’ conduct was reasonable throughout the investigation, and we conclude that the trial court properly admitted the evidence at trial.
Affirmed.
VAIDIK, J., and PYLE, J., concur.
KIRSCH
Judge