*1 party may object settled that a on one
ground at trial and rely on a different
ground appeal." Lasater, Lasater v. 396 (Ind.Ct.App.2004). jury's therefore affirm the determina liability.
tion of
In summary,we affirmthe jury's verdict
as to lability but reverse Philadelphia's
damage award and remand for retrial on
damages only. retrial, Gregory Ap-&
pel may offer support evidence to its affir-
mative defense of Philadelphia's failure to
mitigate damages, including evidence re-
garding the actual cash value of the Auro-
ra School buildings. The trial court should
give Gregory Appel's jury & instructions mitigation damages
regarding and actu-
al cash value if there is evidence in the
record to support them. damages Should
be awarded to Philadelphia,the trial court
may not award prejudgment interest. n art
Affirmed in and reversed and re- in part.
manded J., BARNES, J., concur.
NAJAM,
STATE Indiana, Appellant-Plaintiff ,
Scott CRABB, Michael Appellee - Defendant.
No. 10A01-0501-CR-45.
Court of Appeals of Indiana. Carter, Steve Attorney General of
Oct. Indiana, Nicole Schuster, M. Deputy At- torney General, Indianapolis, for Appel- lant.
William Dawkins, A. Jeffersonville, for Appellee. *2 methamphetamine. of the with
OPINION Barry and Neal M. Robert Troopers Judge. KIRSCH, Chief the rang and the door knocked Brown the trial of a decision appeals State The the from which apartment the of doorbell in a war- seized evidence suppress to court no an- received emanating but odor was charging the search, led to which rantless they that announcing swer, even after metha dealing with Crabb Michael of Seott Neal noticed Trooper officers.: were felony, posses A a Class mphetamine,1 window the front window-coverings at the C felo a Class methamphetamine,2 of sion trying peek to if as someone move D a Class dependant,3 of a neglect and ny, on the cooler a closed was There out. granted trial court the After felony. it and looked opened Neal porch, and front dis the State suppress, to motion the cooler noted that Neal Trooper inside. appeal. this filed and charges its missed hoses, are also which jara and contained is whether on review issue dispositive The manu- methamphetamine with consistent an emanating from of ether smell the facture. child a small house to reported apartment the front knocking on further When justify cireumstances constituted no re- garnered door the rear and door search. ing a warrantless the key to obtained the sponse, reverse. but manager, property from the apartment de- open the not it would that discovered AND PROCEDURAL FACTS Neal Trooper front door. on the adbolt HISTORY door, the rear try open key to the took trial to the most favorable facts of the the back however, reached he before February follows. are as ruling asking Brown Trooper he heard building, Indiana the called Paula Smith him see to let outside and step at her an odor report Post to Police opened had Brown Trooper hands. their the described Smith complex. apartment the cut apartment, the window and spray roach mixture of odor through apartment sereen, and entered that indicated and rubbing alcohol at shotgun his pointed He window. her further noted strong. Smith was smell son young her and occupant the female a small fact that over concern Trooper to move. them told and which apartment in the lived out of occupants then ordered Brown reported also She emanated. including Crabb. apartment, had apartment of occupant male apart- searched Smith and Jack Neal apartment into things bringing been materials precursors found ment and she and that his car of trunk from the methamphetamine. of manufacture for something involved might be thought he Troop- apartment, they searched After illegal. warrant. a search Neal obtained er several dispatched Police Post The State dealing of charged Crabb complaint. investigate felony, A as a Class methamphetamine complex, arriving at Upon aas Class methamphetamine an odor immediately detected possession the officers aas dependant neglect felony, and C was associated ether, they knew which 35-48-4-1. IC 35-46-1-4. SeeIC 3. See IC35-48-4-6. 2. See felony. Class D Crabb filed & motion to Arizona, cey v. 385, 392, 437 U.S. 98 S.Ct.
suppress the evidence found at
apart-
his
(1978)).
concern for the small reported child to be DISCUSSION AND DECISION Indeed, inside. we do not dispute that the "combined knowledge of the fact that the appeal from grant of a mo manufacture of methamphetamine can be suppress, tion to the State appeals from a very dangerous and the fact that negative judgment and must show the trial there ... were in the residence would court's ruling on suppression motion any cause police reasonable officer to see contrary to law. State v. Stamper, the immediate need to remove any ... 862, 788 N.E.2d 864 (Ind.Ct.App.2003), persons from the residence." VanWinkle trans. denied. We will a negative reverse State, v. 764 N.E.2d 266 (Ind.Ct.App. judgment only when the evidence is with 2002). However,we believe it is a close out conflict and all reasonable inferences question whether that the smell of ether lead to a conclusion opposite that of the alone a constitutes sufficient emergency to trial court. Id. This court neither re allow officers to enter a residence without weighs the evidence nor judges the credi a search warrant. bility of witnesses; rather, we consider only the evidence most favorable to VanWinkle, In received three judgment. Id. tips regarding possible manufacture of
methamphetamine at VanWinkle's resi- The argues that there were dence. When officers checked out those justified cireumstances that tips, they personally noted the strong warrantless entry of apartment. smell of ether and several open windows in The Fourth Amendment to the Constitu mid-winter. home, Outside the the offi- tion of the United requires States a war cers observed a consistent with those tank, rant be issued before a search of a home is holding anhydrous ammonia, which is used conducted in order protect against un in of methamphetamine. reasonable searches and seizures. Smock While officers knocked on the front door of 766 N.E.2d 404 (Ind.Ct.App. residence, VanWinkle ran out the back 2002). However, there are exceptions to door. Officers waiting at the back door the warrant requirement, such as when stopped the bare-footed VanWinkle from exigent cireumstances exist. Id. Under escaping. He told that his wife and this exception, police may enter a resi a friend were both asleep inside the house. dence without a warrant "when they rea After arresting VanWinkle, officers then sonably believe that a person within is in entered the home to conduct protective a need of immediate aid." Cudworth v. sweep and preserve evidence, removing 137 (Ind.Ct.App. the persons inside the home during the 2004), (2005) trans. denied process. (quoting Min upheld justification of the sepa- in with BAKER, J., result concurs exeep- valid as actions warrantless officers' opinion. rate Id. at requirement. warrant tions concurring in result BAKER, Judge, with presented Here, opinion. separate with manufacture, as well drug the indicia being present small report that the view majority's agree I re- complaint initial apartment. motion of Crabb's grant trial from the emanating the odors garding However, I be reversed. must suppress Once neighbor. from came notion to advance separately write seene, they the- arrived emanating of ether *4 of ether. to detect able too were of presence of apartment-regardless investiga- during appeared Neighbors offi- justify the enough to child-was had observed they that confirmed and tion subsequent entry and warrantless cers ' When as well. times at other the odors premises. of search door, on knocked first v. in Holder my dissent As I observed in the curtains rustling of a they noticed State: people that window, indicating front under analysis circum- These of our touchstone apartment. in the [The an whether is Amendment the Fourth evidence credible stances, combined protect- and, has a individual premises 'constitutionally child was a small that privacy. of expectation from reasonable ed to both thus, exposed being risks 961, 964 State, 742 N.E.2d v. flammability of Shultz to due explosions com- one methamphet- least At (Ind.Ct.App.2001). in producing used chemicals that 'when has can ether that mentator the effects and amine observed to property private onto come police such system, respiratory on the have oth- for some or investigation an loss of conduct a and even senses numbing restrict and purpose legitimate to rea- er consciousness, caused their be could places to movements inside person a visitors that sonably believe walkways, drive- (e.g., go to aid. expected of need in immediate apartment made from observations porches), ways, metham- that acknowledge readily by covered are points vantage not such rapidly and use phetamine have R. Wayne 1 Amendment! the Fourth and communities in our plagues become 2.8(f), § at and LaFave, Seizure Search inundat- is enforcement law that recognize Moreover, a ed.1996). what (3d 506-08 to metham- related new ed with challenges public, to exposes knowingly person ready to however, are not we phetamine; office, is or home his own in. even offi- allow would which bright line a draw protec- Amendment Fourth subject to a warrant without a home enter cers State, 471 N.E.2d v. Sayre tion. 'That ether. the smell solely on based (Ind.Ct.App.1984). 712 of this facts specific that the said, find we the warrant exception entry and A well-known the warrantless justified case officer a permits requirement search under it is believed the war- home when exception enter cirenmstance or removed destroyed may be evidence requirement. rant v. obtained. is a warrant before Reversed. (Ind.Ct. 593, 600 Straub, 749 N.E.2d have must App.2001). BARNES, J., concurs. 1072
reasonable belief that there are reverse the trial grant of the mo- within the premises who are destroying tion to suppress.
or destroy about to the evidence. Es
querdo v. 640 N.E.2d
(Ind.1994). case, In such a the nature of
the evidence evanescent, must be
the officers must fear its imminent de Id. Yet another exception to
struction.
the warrant requirement arises when bodily risk of harm or death pres is Jerry SMITH, Appellant-Defendant, ent, or when it is necessary to come to the aid anof individual who is in need. Indiana, STATE of Appellee-Plaintiff. VanWinkle v. (Ind.Ct.App.2002), trans. denied. Put No. 29A02-0503-PC-215. another way, preserve [tlhe need to or Court of Appeals of Indiana. protect justifies life what would other wise *5 illegal be if exigency or emergency 20, Oct. 2005. did not exist" Vanzo v. 1061,
N.E.2d 1064 (Ind.Ct.App.2000). (Ind.Ct.App.2005) N.E.2d 370-71
(Baker, J. dissenting).4
As the majority
aptly
so
here,
notes
production and use methamphetamine
have plagued our communities, and our
law enforcement agencies
are inundated
with constant challenges related to meth-
amphetamine. See op.
said,
at 1071. That
given
case,
cireumstances of this
I
must agree with the State's contention
that the smell of ether outside the apart-
ment constituted exigent cireumstances
sufficient
permit
the warrantless entry
of Crabb's residence.
presence
certainly is an im-
portant factor, but I decline to accept the
notion that
the officers could not have
entered the residence "but for"
pres-
ence of the youngster. Hence, I vote to
Supreme
Our
granted
Court
transfer in this
himself to smell the odor
emanating
[of ether]
case
April
2005, although a written
window,
from the basement
it failed to dem
opinion
yet
has
to be issued. See Holder v.
onstrate that
comported
officer's actions
(Ind.2005).