Myron Markas Cook v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
FILED
Sep 14 2012, 8:55 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the CLERK
of the supreme court,
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E. BAIER GREGORY F. ZOELLER
Baier & Baier Attorney General of Indiana
Mount Vernon, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MYRON MARKAS COOK, )
)
Appellant-Defendant, )
)
vs. ) No. 65A05-1201-CR-15
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE POSEY CIRCUIT COURT
The Honorable James M. Redwine, Judge
Cause No. 65C01-1103-FB-103
September 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
After a jury trial, Myron Cook was found guilty of dealing in methamphetamine,
a Class B felony; possession of chemical reagents or precursors with intent to
manufacture a controlled substance, a Class D felony; and maintaining a common
nuisance, a Class D felony. Cook raises two issues for our review, which we restate as:
1) whether the search of Cook’s residence violated the Fourth Amendment; and 2)
whether sufficient evidence supports his conviction for dealing in methamphetamine.
Concluding the search of Cook’s home did not violate the Fourth Amendment and
sufficient evidence supports his conviction for dealing in methamphetamine, we affirm.
Facts and Procedural History
While working the midnight shift in March 2011, Mount Vernon Police Officer
Allen Middleton was driving through a residential area when he smelled a strong odor of
ether, a chemical frequently used in the production of methamphetamine. He drove back
through the area, this time with his windows rolled down, and again noticed the odor.
After contacting Officer Darrin Lemberg, the two men walked around the area in an
attempt to determine from where the odor emanated. They determined the smell was
strongest when standing in front of a home on West Third Street. Officer Lemberg
noticed an open window on the side of the house, approached the window, and
determined the smell was even stronger by the open window.
Officer Lemberg left to obtain a search warrant, while Officer Middleton waited
on West Third Street and watched the house. Soon thereafter, Officer Middleton noticed
a male exit the front of the house, walk off the porch, and shine a flashlight towards
where Officer Middleton and his car were located. The man then went back onto the
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porch. Officer Middleton called Officer Lemberg and told him “they know we’re here.”
Transcript at 9. Officer Lemberg returned, and the officers decided to enter the house.
The officers approached the front door of the house while deputies of the Posey County
Sheriff’s Department covered the back door. While approaching the front door, the
officers also detected the odor of anhydrous ammonia, another chemical used in
methamphetamine production. When Officers Lemberg and Middleton knocked on the
front door, they could hear people talking inside, but no one answered. After Officer
Lemberg informed the inhabitants they would force entry, a woman opened the door.
At the same time that the front door was opened, the deputies covering the back
door forced entry into the home. Cook was one of the home’s inhabitants, along with two
women, a six-year-old child, and a seven-month-old child. They asked one of the women
for consent to search the house, but she refused. Officers ordered the inhabitants out of
the home and, when an officer arrived with a search warrant one to two hours later, they
searched the home. The following items were found in the home: a bottle containing
sulfuric acid, batteries that had lithium stripped from them and were soaking in a solvent,
a bottle with salt in the bottom and a hole drilled in the top with a tube coming out of it,
an empty bottle of Heet, coffee filters, salt, sandwich baggies, a baggie containing a white
powder residue, an air tank with an altered valve, digital scales, a bottle of Liquid Fire,
starting fluid cans, empty blister packs, and empty boxes of various brands of
pseudoephedrine. The white powder residue was later determined to contain ephedrine
or pseudoephedrine and methamphetamine in an amount less than .005 grams.
A jury found Cook guilty of dealing in methamphetamine, a Class B felony;
possession of chemical reagents or precursors with intent to manufacture a controlled
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substance, a Class D felony; and maintaining a common nuisance, a Class D felony. The
trial court sentenced Cook to ten years for dealing in methamphetamine and one and a
half years for each Class D felony, all to be served concurrently. Cook now appeals.
Additional facts will be supplied as appropriate.
Discussion and Decision
I. Search and Seizure
A. Standard of Review
The Fourth Amendment to the United States Constitution protects citizens against
unreasonable searches and seizures. Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006).
Searches performed by government officials are per se unreasonable under the Fourth
Amendment if conducted without a valid warrant, subject to a few well-delineated
exceptions. Id. We review the trial court’s denial of a defendant’s motion to suppress
evidence using a standard similar to that employed in sufficiency of the evidence
challenges. Id. We will consider the evidence favorable to the trial court’s ruling, along
with substantial uncontradicted evidence to the contrary, and we will determine whether
the evidence is sufficient to support the trial court’s ruling. Id.B. Cook’s Fourth Amendment Challenge1
The State argues Cook has waived his right to challenge the officers’ search of his
residence as unreasonable because Cook did not object contemporaneously at trial when
1
Cook briefly raises Article 1, Section 11 of the Indiana Constitution in his statement that citizens are
protected from unreasonable searches and seizures. This is his only reference to this constitutional provision. Cook
does not articulate a separate and independent basis that the search of his home was improper based upon the
Indiana Constitution, and therefore any state constitutional claim is waived. Wilkins v. State, 946 N.E.2d 1144,
1147 (Ind. 2011).
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evidence arising from that search was admitted. As a threshold issue, we address this
first.
Prior to trial, Cook moved to suppress evidence and argued the search of his
residence was unconstitutional. Following a suppression hearing, the trial court denied
his motion. At trial, several people testified: Officers Middleton and Lemberg, Jailer
James Key, Deputy Jeremy Fortune, Kenneth Rose, Marcus Montooth, and Rebecca
Nickless. In addition to the testimony of each individual, the State presented various
exhibits, including all of the items found in Cook’s home, during the testimonies of Key,
Fortune, Rose, Montooth, and Nickless. No exhibits were offered during the testimonies
of Officers Middleton or Lemberg.
As Cook notes in his reply brief, during Officer Middleton’s testimony, Cook
objected based upon the Fourth Amendment “to any testimony presented beyond this
point” when Officer Middleton began discussing the events and contents inside the home.
Tr. at 10. Again, during Officer Lemberg’s testimony, Cook objected “to any testimony
beyond this point” when Officer Lemberg began testifying as to what occurred and what
was found inside the home. Id. at 30. Both objections were overruled. Cook does not
cite to any other objections made during trial based upon the Fourth Amendment. On
review, we will not search the record to find a basis for a party’s argument. Nealy v.
American Family Mut. Ins. Co., 910 N.E.2d 842, 845 n.2 (Ind. Ct. App. 2009), trans.
denied; see also Ind. Appellate Rule 46(A)(8)(a).
As our supreme court has stated:
A contemporaneous objection at the time the evidence is introduced at trial
is required to preserve the issue for appeal, whether or not the appellant has
filed a pretrial motion to suppress. The purpose of this rule is to allow the
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trial judge to consider the issue in light of any fresh developments and also
to correct any errors.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citations omitted). We therefore agree
with Cook that he did not waive the right to argue the testimonies of Officers Middleton
and Lemberg violated the Fourth Amendment, but we agree with the State that Cook has
waived such an argument for the various exhibits the State introduced into evidence
while other witnesses testified.
We now turn to the merits of Cook’s Fourth Amendment argument. Cook
contends the police officers’ initial warrantless entry into his home violated the Fourth
Amendment. Assuming for the sake of argument that the officers’ entry into the home
was not invited, we examine whether any exceptions to the warrant requirement exist.
The State argues the exigent circumstances exception applies because officers detected
strong odors of ether and anhydrous ammonia coming from the home and, after they
knew people were inside the home, the officers were concerned for the inhabitants’
safety. We agree. In Holder, our supreme court addressed whether a strong ether odor
coming from a home coupled with police officers’ knowledge that the home was
currently inhabited created exigent circumstances due to the risk of immediate danger to
the home’s inhabitants. 847 N.E.2d at 939-40. The court concluded, “[w]e hold that an
objectively reasonable belief in the immediate need to protect the public from death or
serious injury supported the officers’ conclusion that exigent circumstances justified the
immediate warrantless entry into the defendant’s house, notwithstanding the
unreasonable search and seizure provisions of the Fourth Amendment.” Id. at 940. Cook
is correct that in Holder police officers knew a child was in the home before entering,
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unlike here, and that the court noted this fact in its opinion as a factor giving officers a
reasonable belief that immediate entry was needed to protect the public from death or
serious injury, including the child. However, the court’s concluding paragraphs and
holding do not limit the application of the exigent circumstances exception to situations
where a child is present in the home. While a child’s presence may give officers extra
concern, knowledge of any persons located inside the home is sufficient to create exigent
circumstances such that the exception to the warrant requirement applies.
Even if no exception applied to the Fourth Amendment’s requirement that police
have a warrant to enter a home, the violation would be harmless error. “Harmless error
occurs when the conviction is supported by substantial independent evidence of guilt
which satisfies the reviewing court that there is no likelihood that the erroneously
admitted evidence contributed to the conviction.” Smock v. State, 766 N.E.2d 401, 407
(Ind. Ct. App. 2002). The testimonies of Officers Middleton and Lemberg do not include
incriminating evidence, other than the fact that once inside the home they could still
smell ether and anhydrous ammonia. The officers had already testified that they were
able to determine the chemical odors were coming from Cook’s home before they
entered. Thus, their statements that they again smelled the chemicals once inside offered
no new evidence. The rest of the evidence found in the home was retrieved after a search
warrant was obtained.2 We are therefore satisfied there is no likelihood that the
2
Cook argues that if the officers’ entry violates the Fourth Amendment, the search warrant was invalid
because the affidavit for the search warrant contained information obtained during the initial entry into the home.
Leaving aside our conclusion that Cook has waived any argument that the various pieces of evidence found inside
the home were admitted into evidence in violation of the Fourth Amendment, we disagree with Cook’s synopsis of
the search warrant affidavit. Although not entirely clear, the affidavit does elude to the affiant smelling ether and
anhydrous ammonia inside the home after police entered, but it also stated that the officers detected the odor and
traced it to Cook’s residence before entering, that Officer Lemberg knew Cook had previous involvement with
methamphetamine production, that the officers themselves had previous experience with methamphetamine
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testimonies of Officers Middleton and Lemberg, even if erroneously admitted,
contributed to the conviction.
II. Sufficiency of the Evidence
A. Standard of Review
When reviewing a sufficiency of the evidence claim, we do not reweigh the
evidence or assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621,
639 (Ind. 2010). We look only to the evidence that supports the verdict and any
reasonable inferences drawn therefrom, and we will affirm a conviction if there is
probative evidence from which a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. Id.B. Dealing in Methamphetamine
“A person who: (1) knowingly or intentionally: (A) manufactures; . . .
methamphetamine, pure or unadulterated; . . . commits dealing in methamphetamine, a
Class B felony[.]” Ind. Code § 35-48-4-1.1(a). “Manufacture” is defined as “the
production, preparation, propagation, compounding, conversion, or processing of a
controlled substance, either directly or indirectly by extraction from substances of natural
origin, independently by means of chemical synthesis, or by a combination” of extraction
and chemical synthesis. Ind. Code § 35-48-1-18.
Cook argues the evidence is insufficient to support his conviction of dealing in
methamphetamine because the evidence does not support a finding that he manufactured
production and the smells of ether and anhydrous ammonia, and that Officer Middleton observed a man exit and
subsequently re-enter the home while he was waiting for a search warrant. Even without the vague statement that
could suggest the affiant smelled ether and anhydrous ammonia after entering the home, a sufficient basis for the
issuance of the search warrant existed. See Jaggers v. State, 687 N.E.2d 180, 181 (Ind. 1997) (“In deciding whether
to issue a search warrant, the task of the issuing magistrate is simply to make a practical, commonsense decision
whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.”) (quotation omitted).
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methamphetamine. Deputy Fortune testified about the scene officers found inside Cook’s
home. He stated lithium had been stripped out of batteries and they were soaking in
solvent in order to be added to the manufacturing reaction and that a water bottle had salt
in the bottom, a hole drilled in the top, and a tube coming out. Deputy Fortune testified
the water bottle apparatus was a hydrogen chloride gas generator, and “[a]ll you needed
was the liquid fire to go with it, to add to it, to make the gas.” Tr. at 110. This is
analogous to Dawson v. State, 786 N.E.2d 742 (Ind. Ct. App. 2003), trans. denied, where
this court determined the defendant had “manufactured” methamphetamine by crushing
over-the-counter pills into a powder form in order to extract ephedrine, a precursor in the
production of methamphetamine, because this was an extraction process. Id. at 748.
Similarly, officers discovered lithium, a precursor in the production of
methamphetamine, extracted from batteries inside Cook’s home. A reasonable jury could
have concluded Cook had “manufactured” methamphetamine based upon this evidence.
Conclusion
Police officers’ initial entry into Cook’s home did not violate the Fourth
Amendment because exigent circumstances existed, and the evidence is sufficient to
support Cook’s conviction of dealing in methamphetamine. We therefore affirm.
Affirmed.
BAKER, J., and BRADFORD, J., concur.
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