Casey Walker v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HUGH N. TAYLOR GREGORY F. ZOELLER
Auburn, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
Apr 18 2013, 9:24 am
IN THE
COURT OF APPEALS OF INDIANA
CASEY WALKER, )
)
Appellant-Defendant, )
)
vs. ) No. 76A04-1204-CR-207
)
STATE OF INDIANA )
)
Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN SUPERIOR COURT
The Honorable William C. Fee, Judge
Cause No. 76D01-1111-FA-1105
April 18, 2013
OPINION – FOR PUBLICATION
BAKER, Judge
In this case, appellant-defendant Casey Walker was convicted of class A felony
Manufacturing Methamphetamine1 and sentenced to thirty years of incarceration.
Evidence presented at Walker’s trial included evidence obtained from a warrantless
search of a residence that police officers conducted after obtaining the consent of
Walker’s wife, an occupant of the residence, and Walker’s mother, the owner and an
occupant of the residence.
On appeal, Walker argues that the State failed to establish an exception to the
warrant requirement because his mother is incapable of giving consent in that she suffers
from Alzheimer’s disease. Walker requests that the evidence seized from the search be
suppressed, and consequently, his conviction reversed.
We conclude that Walker has failed to establish that his mother was incompetent
to give consent to search the residence. Moreover, there was undisputed testimony at
trial that Walker’s wife gave verbal consent to search the residence, and Walker points to
no evidence that he explicitly told the police that they could not enter his residence.
Accordingly, we find that the police had consent to search the residence, and the trial
court did not err by admitting the evidence. Thus, we affirm the judgment of the trial
court.
1
Ind. Code § 35-48-4-1.1.
2
FACTS2
In 2011, Walker and his wife, Jennifer, lived in Steuben County with Walker’s
eighty-seven-year-old mother, Mary Walker. Mary owned the residence and, according
to Walker’s testimony, had been diagnosed with Alzheimer’s disease. Walker acted as
his mother’s power of attorney, and his sister, Susan Baumgartner, served as alternate
power of attorney.3
On November 10, 2011, Jennifer saw Walker putting gray strips into a plastic
bottle and noticed a “chemical odor.” Tr. p. 121. Because Jennifer had “a hunch” that
Walker was making methamphetamine, she drove herself and Mary to her sister’s house,
which was “[j]ust up the road.” Id. at 121-23. Once they arrived, Jennifer called the
police and reported that she thought Walker was manufacturing methamphetamine.
Detective Sergeant Michael Meeks of the Steuben County Sheriff’s Department
received a call shortly after noon on November 10th about a complaint of possible “meth
making activity at [the Walker] residence.” Tr. p. 131. Detective Meeks and two patrol
deputies met Jennifer at a parking lot at Fairview Missionary Church, which is adjacent
2
We heard oral argument on April 1, 2013, at the Indiana University Maurer School of Law. We would
like to thank counsel for their presentations and the students who attended the argument for their presence
and respectful manner. Additionally, we want to express our appreciation to the administration, faculty,
technology support, and staff of the Maurer School of Law for their warm hospitality and assistance.
3
The documents granting power of attorney to Walker and alternate power of attorney to Baumgartner
were not included in the record on appeal. Instead, we have only the colloquy between the trial court and
the defense counsel that it would be “[e]asy enough for me to check the court records [to] see if there is a
guardianship” or a power of attorney. Tr. p. 104.
3
to the Walker residence. The information that Detective Meeks received from Jennifer
“indicated that the lab was active and so our, my main concern was the hazardous
materials and the possible fire hazard that’s commonly associated with the one pot
methamphetamine.”4 Id. at 132.
Detective Meeks obtained verbal consent from Jennifer and Mary to enter the
house and try to make contact with Walker. Additionally, Detective Meeks witnessed
Mary and Baumgartner sign a consent form granting the police officers permission to
enter the house.
After obtaining these consents, Detective Meeks met with Sergeant Nott and
Deputy Reardon, and they entered the residence through an open overhead garage door.
After entering the garage, they “knocked on the entry door . . . along the east wall of the
garage. The main door was open but the storm door was closed.” Tr. p. 138. Detective
Meeks stated that they knocked several times and that Sergeant Nott called out Walker’s
name. After receiving no response, the three officers stepped inside based on Jennifer’s
and Mary’s consent.
At that point, Walker emerged from a bathroom that was adjacent to the door
where the officers had just entered. Walker was immediately “placed into protective
custody by being handcuffed behind the back,” while the officers conducted a protective
sweep of the residence. Tr. p. 139-40. Detective Meeks briefly explained to Walker why
4
Detective Meeks explained to the jury that the “one pot” method of making methamphetamine involves
filling a sports or two-liter bottle with ammonium sulfate or ammonium nitrate, adding any organic
solvent and either pseudoephedrine or ephedrine, and then adding lithium strips extracted from batteries,
which begins the chemical reaction. Tr. p. 135-36.
4
the officers were there and what they were doing. Walker denied making
methamphetamine.
During the protective sweep, Detective Meeks noticed a chemical odor in the
southwest bedroom that he associated with the manufacture of methamphetamine.
Detective Meeks also noticed an open window with an exhaust fan in it and knew from
his experience and training that this was a common practice during the manufacture of
methamphetamine to rid a room of the chemical odor. Additionally, Detective Meeks
observed coffee filters inside a gallon-size plastic storage bag, which are commonly used
to make methamphetamine using the “one pot” method. Appellant’s App. p. 132.
Based on this information and Detective Meeks’s training and experience, he
believed that he had probable cause that methamphetamine was being manufactured in
the residence. Detective Meeks sought and obtained a search warrant, and during the
execution of the search warrant, the police found:
 Two plastic bottles containing a white granular substance, one of which also
contained a clear liquid
 Two bottles containing drain opener
 Blue plastic funnel with white residue
 Coffee filters
 Plastic zip lock bags
 One pair of pliers
 One pair of side cutters
 Two canisters of Morton Salt – one empty and one partially full
 One opened instant ice compress
 Empty PSE blister packs
 One empty 32 ounce bottle of camp fuel.
Appellant’s App. p. 120.
5
Jerry A. Hetrick, a forensic scientist for the Indiana State Police Laboratory,
conducted testing on the various items taken from Walker’s home. The result of
Hetrick’s testing indicated that the plastic bottle with the clear liquid contained
methamphetamine and either ephedrine or pseudoephedrine.
On November 14, 2011, the State charged Walker with class A felony
manufacturing methamphetamine. Walker’s trial was scheduled to begin on March 15,
2012, and on that day, Walker filed various motions, including two motions to suppress
evidence – one pursuant to the search warrant and the other pursuant to Jennifer’s and
Mary’s consent.
Walker challenged the validity of the search on numerous grounds, including that
the search warrant violated the Fourth Amendment to the United States Constitution
because it was “overly broad.” Appellant’s App. p. 74. Additionally, Walker claimed
that the search warrant affidavit failed to establish probable cause because although it
alleged that Jennifer had given statements “against her penal interests,” there was no
indication that she was involved in any criminal activity. Id. Walker also alleged that the
police failed to properly knock and announce their presence and that “[u]nder the totality
of the circumstances, the search of [Walker’s] home, pursuant to the search warrant was
unreasonable, and thus violated Article I, Section 11 of the Indiana Constitution.” Id. at
74-75.
In Walker’s motion to suppress the evidence seized as the result of the search
pursuant to Jennifer’s consent, Walker claimed that the search violated the Fourth
6
Amendment because his “wife’s consent to search was not validly given.” Appellant’s
App. p. 79. In the alternative, Walker alleged that the “police exceeded the scope of [his]
wife’s consent, thereby violating the Fourth Amendment.” Id. Finally, Walker argued
that “[c]onsidering the totality of the circumstances, the police officer’s search of [his]
home was unreasonable and, thus, violated Article I, Section 11 of the Indiana
Constitution.” Id. at 80.
Walker’s jury trial commenced on March 15, 2012. After the jury had been sworn
but before the presentation of evidence, the trial court heard evidence regarding Walker’s
various motions, including his motion to suppress the evidence “that was obtained during
the first warrant less [sic] entry into the premises.” Tr. p. 99. Walker claimed that the
police officers had failed to obtain valid consent. Id.The State offered State’s Exhibit 24, which was the consent form to search that
Mary and Baumgartner had signed. Id. at 100; State’s Ex. 24. The defense stipulated
that the consent form was signed in front of Detective Meeks, and State’s Exhibit 24 was
admitted. Tr. p. 100.
Walker was then permitted to testify that he believed that the signatures were
invalid because his mother suffered from Alzheimer’s disease and was incompetent to
consent. Tr. p. 101. Further, Walker testified that Baumgartner was legally incompetent
to consent because Walker was the primary power of attorney and that she did not have
power of attorney unless Walker was unable to perform his functions. Id. at 102.
7
While Walker was under cross-examination and redirect examination, there was
confusion regarding whether Walker had a power of attorney or a guardianship over
Mary. Walker’s counsel offered to check the court records, and the trial court granted a
“quick continuance.” Tr. p. 104.
The trial court then explained that “[p]ower of attorney means that you are
authorized to make decisions for someone. It does not divest that someone of the
authority to make decisions for themselves.” Id. By contrast, a guardianship divests a
person of their own decision-making authority and requires a determination, as a matter
of law, that the person is incompetent. Id. at 105. After determining that Walker
possessed a power of attorney and not a guardianship, his motions to suppress were
denied.
The next day, the jury returned a guilty verdict to class A felony manufacturing
methamphetamine. On April 9, 2012, the trial court held a sentencing hearing during
which it sentenced Walker to thirty years of incarceration. Walker now appeals.
DISCUSSION AND DECISION
Walker argues that the trial court erred by failing to grant his motion to suppress
the evidence. Walker contends that “the finding by the trial court that the search was
valid should be reversed and all evidence obtained pursuant to the illegal search
suppressed. This case should be reversed and remanded with instructions that the State
should be barred from further prosecution.” Appellant’s Br. p. 12.
8
I. Procedural Posture and Standard of Review
At the outset, it is noteworthy that Walker frames the issue as whether the trial
court erred by denying his motion to suppress. This Court has determined that unless a
defendant seeks an interlocutory appeal, “the issue is more appropriately framed as
whether the trial court abused its discretion by admitting evidence at trial.” Washington
v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).
This is not merely a distinction without a difference insofar as the standard of
review is concerned. Regarding a denial of a motion to suppress, this Court does not
reweigh the evidence and considers conflicting evidence most favorable to the trial
court’s ruling. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). However, this
Court also considers the uncontested evidence favorable to the defendant. Id.By contrast, when reviewing the admissibility of evidence, because trial courts are
given such broad discretion, we will reverse only when a trial court abused its discretion.
Id. An abuse of discretion occurs when a decision is clearly against the logic and effect
of the facts and circumstances before the court. Id. Accordingly, unless the defendant
takes an interlocutory appeal, thereby permitting us to review a denial of a motion to
suppress, we may not consider the uncontested evidence favorable to the defendant. Id.Here, because Walker did not seek an interlocutory appeal of the trial court’s
denial of his motion to suppress, the issue is whether the trial court erred by admitting the
evidence resulting from the search of his residence. Consequently, we will review the
9
admission of this evidence only for an abuse of discretion and will not consider the
uncontested evidence favorable to Walker.
II. Fourth Amendment – Search by Consent
Proceeding to the merits, Walker argues that Mary was incompetent to consent to
the search of the residence and that Baumgartner was not authorized to consent because
she was Mary’s alternate power of attorney. The State counters that the police officers
obtained valid consent from both Mary and Jennifer before entering the Walker
residence.
Under the Fourth Amendment, the warrantless entry of a person’s house is per se
unreasonable. Georgia v. Randolph, 547 U.S. 103, 109 (2006). However, one
“‘jealously and carefully drawn’” exception is when voluntary consent is given by an
individual possessing authority. Id. (quoting Jones v. United States, 357 U.S. 493, 499,
78 S. Ct. 1253, 1257 (1958)).
A. Mary’s Competency to Consent
As stated above, the Detective Meeks obtained Mary’s written and verbal consent
to search the residence which she owned and in which she resided. Tr. p. 100, 138;
State’s Ex. 24. However, Walker argues that Mary was incompetent because she had
been diagnosed with Alzheimer’s disease and placed on medication approximately two
months before the search.
Initially, we observe that it is a general principle of law that everyone is presumed
to be competent. See Bellmore v. State, 602 N.E.2d 111, 117 (Ind. Ct. App. 1992)
10
(stating that “[a] witness is presumed to be competent[;] . . . [i]f evidence places the
competency of a witness in doubt, the trial court should order a psychiatric evaluation”);
Hays v. Harmon, 809 N.E.2d 460, 464 (Ind. Ct. App. 2004) (stating that “[e]very person
is presumed to be of sound mind to execute a will until the contrary is shown”).
Here, at the time Mary consented to the search, there was no legal guardianship
over her. Tr. p. 110. Thus, Mary was not divested of the ability to make decisions for
herself. See Ind. Code § 29-3-1-6 (defining “Guardian” as “a fiduciary” appointed by “a
court to be a guardian or conservator responsible . . . for . . . an incapacitated person”);
Ind. Code § 29-3-1-7.5 (defining “Incapacitated person” as someone who “is unable” to
manage the individual’s property or provide self-care or both because of some
incapacity).
Here, no doctor or any other expert specializing in neurological disorders testified
regarding Mary’s mental capacity. Indeed, it appears from the record that the only
evidence regarding the extent of Mary’s Alzheimer’s disease is Walker’s testimony that
she had been diagnosed with the disease and placed on medication two months prior to
giving consent. Tr. p. 103. Consequently, there is uncertainty regarding the extent to
which Mary’s condition had progressed. Under these facts and circumstances, we cannot
conclude that Walker rebutted the presumption that Mary was competent to consent to
the search of the residence that she owned and where she resided. Thus, this argument
fails.
11
B. Jennifer’s Ability to Consent
The State argues that not only did Mary have authority to consent to the search,
but that Jennifer also had authority to consent to the search. A third party who has
common authority over the property may give consent. Hill v. State, 825 N.E.2d 432,
436 (Ind. Ct. App. 2005).
Common authority rests on the mutual use of the property by persons
generally having joint access or control for most purposes, so that it is
reasonable to recognize that any of the cohabitants has the right to permit
the inspection in his or her own right and that the others have assumed the
risk that one of their number might permit the common area to be searched.
Id.Here, at Walker’s trial, Jennifer testified that Walker is her husband. Tr. p. 119.
Jennifer further stated that on November 10, 2011, she was living with Walker and his
mother, Mary. Id. at 119-120. Jennifer explained that on November 10th, she saw
Walker “put something in, into a plastic bottle,” and smelled a chemical odor. Id. at 120-
21. Jennifer then packed up a few personal items and decided to leave the house with
Mary. Based on these facts, it was reasonable for the police officers to conclude that
Jennifer and Walker were husband and wife, living in the same house. Therefore, it was
reasonable for Detective Meeks to believe that Jennifer had the authority to consent to the
search.
Moreover, we find the instant case distinguishable from Georgia v. Randolph, 547
U.S. 103 (2006). In Randolph, after a domestic dispute, the police obtained the wife’s
consent to search over the husband’s explicit objection. Id. at 107. The United States
12
Supreme Court determined that a co-tenant “has no recognized authority in law or social
practice to prevail over a present and objecting co-tenant.” Id. at 114. Indeed, the
disputed consent, without more, “gives a police officer no better claim to reasonableness
in entering than the officer would have in the absence of any consent at all.” Id.Unlike in Randolph, there is no indication that Walker explicitly refused consent.
Thus, the trial court properly admitted the evidence discovered during the search, and we
affirm the decision of the trial court.5
The judgment of the trial court is affirmed.
NAJAM, J., and RILEY, J., concur.
5
Walker briefly cites to Article I, Section 11 of the Indiana Constitution to argue that the search of his
premises was unreasonable. However, Walker fails to develop an independent argument and analysis
regarding these facts; therefore, he has waived this claim. See Ackerman v. State, 774 N.E.2d 970, 978
n.10 (Ind. Ct. App. 2002) (stating that the failure to cite to any authority or to make a separate argument
specific to the state constitutional provision waives the issue on review).
13