Case Information
*1 A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Ivan A. Arnaez Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana I N T H E
COURT OF APPEALS OF INDIANA Luke M. Warren, March 30, 2017 Court of Appeals Case No. Appellant-Defendant,
87A01-1606-CR-1399 v. Appeal from the Warrick Superior Court State of Indiana, The Honorable Robert R. Aylsworth, Judge Appellee-Plaintiff
Trial Court Cause No. 87D02-1312-FB-442
Altice, Judge.
Case Summary Following a jury trial, Luke M. Warren was convicted of class B felony dealing
in methamphetamine and class D felony possession of chеmical reagents or *2 precursors with the intent to manufacture a controlled substance. Warren raises two issues on appeal:
1. Did the trial court admit evidence against Warren that was obtained in violation of his rights under the Fourth Amendment to the United States Constitution?
2. Was Warren denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution because his lawyer also represented Warren’s codefendant? We affirm.
Facts & Procedural History On December 18, 2013, Indiana State Trooper Matthew Lockridge and
Warrick County Sheriff’s Deputy Jarrett Busing went to Warren’s mobile home as the result of a tip regarding the manufacturing of methamphetamine at that location. Deputy Busing was familiar with Warren and had beеn to his home on prior occasions. They arrived at 9:06 p.m. and parked halfway down Warren’s long driveway.
The rest of the driveway and the surrounding area was extremely muddy, with wooden pallets leading in different directions to approach the residence. There were three doors to the home – the east/front door, the north door leading to the driveway where а truck was parked five or six steps away, and the west door in the back, which was a glass door with a screen. There was an outside light on in the back. As the officers approached the home, they both detected a chemical odor that
they knew through their training and experience to be commonly associated with the manufacturing of methamphetamine. Deputy Busing identified it as the smell of ether, and Trooper Lockridge indicated that it was a chemical smell that he had smelled before at other methamphetamine labs. Deputy Busing approached the front door and knocked and announced his
presence loudly while Trooper Lockridge stood watch on the north side of the home near the truck. No one answered the front door, so Deputy Busing moved to the two other doors and continued to knock and yell loudly. He also knocked on windows. In the meantime, Trooper Lockridge felt the hood of the truck and looked to see if anyone was inside the truck. At the same time, he observed a burn pile next to the truck that had stripped batteries and a pseudoеphedrine box on top of the pile in plain sight. After numerous failed attempts to reach someone inside, the officers drove their
v ehicles back up to the roadway and out of view of Warren’ s home. As they discussed their next course of action and contacted other officers, Warren’s mother, Diana, arrived on the scene around 10:00 p.m. Ostensibly there tо check the mail, Diana asked the officers why they were there and whether Warren was in trouble. Deputy Busing indicated that they were investigating and that if she went down to the residence he would follow. Diana decided to leave. *4 Believing that Diana had come at the request of her son, the officers walked
back down to the residence. They observed that the outsidе light had been turned off. Additionally, Deputy Busing noted that it looked as if the back door had been opened. Deputy Busing knocked at that door. Shortly thereafter, Warren and his live-in girlfriend, Melody Corsentino, walked around from the other side of the mobile home and spoke with him. Deputy Busing explained why they were there and noted the chemical odor and the items observed in the burn рile. Warren responded that he had a problem with his neighbors throwing their “meth trash” on his property. Trial Transcript at 44. Deputy Busing asked Warren for consent to search the mobile home, but
Warren indicated that his mother owned the property and her consent would be required. At Trooper Lockridge’s request, Warren called Diana, and she came to the scene. Thereafter, аround 11:00 p.m., both Diana and Warren signed consents to search the home. After officers located a few items related to methamphetamine use and
manufacturing, Warren began questioning the consent that he had signed. At that point, the officers stopped the search, secured the residence, and applied for a search warrant. The search warrant was obtained in the early morning hours, and officers resumed the search. Throughout the home, officers found a plethora of items used in the manufacturing of methamphetamine, as well as methamphetamine residue and paraphernalia.
[11] On December 20, 2013, the State charged Warren with class B felony dealing in
methamphetamine (Count I) and class D felony possessiоn of chemical reagents or precursors with the intent to manufacture a controlled substance (Count II). The State also alleged that Warren was a habitual substance offender (Count III). Warren filed a motion to suppress on September 9, 2014, arguing that his
consent to search was not voluntarily given. Deputy Busing and Trooper Lockridge testified at the suppression hearing. Defense counsel argued that what started as a consensual encounter – the knock and talk – transformed into a seizure when the officers continued to knock and yell and not leave the property when no one answered. The trial court took the matter under advisement and then denied the motion on October 5, 2014. Warren’s jury tri al concluded on March 2, 2016, with the jury finding him
guilty аs charged on Counts I and II. Warren then stipulated that he had two prior substance abuse convictions, and the trial court determined that he was a habitual substance offender. On April 22, 2016, the trial court vacated the judgment of conviction on Count II and sentenced Warren to a total of seven years in prison on Counts I and III. On May 20, 2016, Warren filed a motion to correct error arguing that his right
to counsel was violated when his privately-retained trial counsel represented both Warren and his codefendant, Corsentino, in separate trials. The trial court denied the motion on June 7, 2016. Warren now appeals.
Discussion & Decision 1. Fourth Amendment Warren argues that evidence was admitted at trial in violation of his rights under the Fourth Amendment. He acknowledges that thе officers had a right to perform a knock and talk at his front door. He contends, however, that when he did not answer the door, the officers were required to leave the property. According to Warren, Deputy Busing’s continued knocking on doors and windows and yelling transformed what began as an attempt to engage in a consensual encounter into an unconstitutional seizure invalidating Warren’s subsequent consent to search. Subject to certain recognized exceptions, the Fourth Amendment prohibits
warrantless searches and seizures inside a home and its curtilage (i.e., the area
immediately surrounding and associated with the home).
J.K. v. State
, 8 N.E.3d
222, 229 (Ind. Ct. App. 2014). No unreasonable search occurs, however, when
police enter areаs of curtilage impliedly open to use by the public to conduct
legitimate business.
Hardister v. State
,
speak with him after receiving a tip regarding the manufacturing of
methamрhetamine at that location. They drove down the driveway as far as
they could and then walked the rest of the way to the residence. Deputy Busing
went and knocked on the front door while Trooper Lockridge waited in the
driveway near the residence and truck. The officers’ actions at this point, as
Warren agrees, did not violate the Fourth Amendment. From this vantage
point, both officers smelled a chemical odor they associated with the
manufacturing of methamphetamine. Trooper Lockridge also observed in plain
view items associated with such manufacturing on a burn pile next to the truck.
Because of these observations, Deputy Busing knocked and yelled longer,
louder, and in more locations than he would in a typiсal knock-and-talk
situation. Warren would have us ignore the additional observations made by
the officers while legally on his property. But that would not be reasonable.
In
Holder v. State
,
the home was occupied during their initial entry onto the curtilage of Warren’s property. Thus, they could not – and indeed did not – make a warrantless entry into Warren’s home based on exigent circumstances. This is not to say, however, that they could not engage in a reasonable investigation tо determine whether there were occupants inside the mobile home from which the chemical odor was emanating. The touchstone of the Fourth Amendment is reasonableness. J.K. , 8 N.E.3d at
229.
See also Terry v. Ohio
,
damning case”. Appellant’s Brief at 40. In that case, deputies conducted a knock *9 and talk at a quiet motel room late at night. When the occupants did not answer, the deputies continued to knock for several minutes and announce verbally that they were police and wanted the door opened. One of the deputies then began knocking on the window and shining a light through it. The Seventh Circuit concluded:
Once the officers had been refused admittance, their continued efforts to rouse the occupants out of bed certainly prevented them from ignoring the continued requests and from maintaining the privacy and solitude of their dwelling. The deputies’ persistenсe, in the face of the refusal to admit, transformed what began as an attempt to engage in a consensual encounter into an investigatory stop.
Id. at 691-692. The Jerez court went on to explain that if an occupant refuses to answer the
door and police take additional steps to obtain an answer, then the Fourth Amendment imposes some minimal level of objeсtive justification to validate the resulting seizure. See id . at 692. The Seventh Circuit indicated that because the deputies’ actions, when considered in their totality, amounted to an investigatory stop, the deputies needed reasonable suspicion that criminal activity was afoot to go beyond the traditional knock and talk. Id . at 693. Because the Seventh Circuit found reasonable suspicion lacking, it held that the defendant’s consent to search obtained almost immediately followin g the illegal seizure was invalid. . at 693-95. Unlike in Jerez , Deputy Busing and Trooper Lockridge had reasonable
suspicion to broaden their investigation once they smelled the chemical odor,
known to be associated with the manufacturing of methamphetamine, and
observed precursors on the burn pile. At a minimum, given the volatile nаture
of such an environment, they were permitted to intensify their knocking and
announcing to determine whether there were occupants at risk inside the home.
Cf. Hardister
,
Amendment standard of reasonableness and constituted a reasonable response to the suspicion created by the odor rеgarding a possible danger inside the home. Thus, Warren’s subsequent consent to search was not rendered invalid *11 by the officers’ preceding actions , and the extensive evidence found inside the home was properly admitted at trial.
2. Sixth Amendment Warren argues that his Sixth Amendment right to counsel was denied when his
trial attorney also represented Corsentino, his codefendant, in a sеparate trial, which took place after Warren’s trial. He asserts that at no time did counsel or the trial court explain to him the ramifications of dual representation or seek an express waiver of any possible conflicts of interest. Further, Warren notes that counsel did not call Corsentino as a witness at his trial. Warren acknowledges that he did not object at trial to the dual representation,
and he does not argue that the trial court knew or should have reasonably
known that a particular conflict existed. Thus, the trial court had no obligation
to
sua sponte
inquire into the propriety of such representation.
See Cuyler v.
Sullivan
,
violate the Sixth Amendment unless it gives rise to an actual conflict of interest.
. at 348. In other words, a reviewing court cannot presume that a possibility
for conflict resulted in ineffective assistance of counsel. Rather, “a defendant
whо raised no objection at trial must demonstrate that an actual conflict of
*12
interest adversely affected his lawyer’s performance.”
Id
.
See also Williams v.
State
,
establishing that an actual conflict of interest existed that adversely affected
counsel’s performance. As the Supreme Court observed in
Cuyler
, the provision
of separate trials significаntly reduces the potential for a divergence in the
interests of codefendants. . at 347. Moreover, there is no evidence in the
record that Warren and Corsentino advanced different or conflicting defense
theories
[2]
or that they had divergent interests.
See Williams
,
Bruton v. United States
,
refused to call Corsentino as a witness becausе counsel also represented her. As an initial matter, Warren does not present any evidence that counsel still represented Corsentino at the time of Warren’s trial. Further, counsel may have had strategic reasons for not calling her as a witness in his trial. Because Warren chose to raise this issue in a motion to correct error and on direct apрeal rather than on post-conviction review, facts in support of his claim are woefully lacking. We refuse to indulge in speculation and assumptions regarding pivotal facts. Thus, we conclude that Warren has failed to establish an actual conflict of interest adversely affected his trial counsel ’s performance. Judgment affirmed. Riley, J. and Crone, J., conсur.
Notes
[1] “A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer’s suspicions.” Id . at 570. In Hardister , the Court acknowledged that this was not a typical Terry case involving a seizure in a public place. Id . at 571. The Court, however, rejected defendant’s argument that police may never invade the curtilage of a residence without probable cause and a warrant or exigent circumstаnces. The Court explained, “ [t]he mere fact that officers enter curtilage to conduct an otherwise lawful Terry stop does not ipso facto render the physical invasion of the curtilage an unlawful search.” .
[2] Contrary to his assertion on appeal, the defense advanced at trial was not that only Corsentino manufactured methamphetamine in the homе. Rather, defense counsel argued that the State had not presented adequate evidence that methamphetamine had been manufactured in the home. Counsel emphasized during closing argument that, among other things, no active lab was found, several key components were not found, the burn pile was not hot when the officers arrived, and no significant quantity of methamphetamine was discovered in the home.