Jack Hiatt v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 19, 2016
• Docket: 27A04-1603-CR-477
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 19 2016, 8:21 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Gregory F. Zoeller Grant County Public Defender Attorney General of Indiana Marion, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jack Hiatt, October 19, 2016 Appellant-Defendant, Court of Appeals Case No. 27A04-1603-CR-477 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey D. Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 27D01-1509-F4-36

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 1 of 13 Case Summary [1] Following a jury trial, Jack Hiatt (“Hiatt”) was convicted of (1) Dealing in

Methamphetamine, as a Level 4 felony1; (2) Maintaining a Common Nuisance,

as a Level 6 felony2; and Possession of Paraphernalia, as a Class C

misdemeanor3. Wilkins now appeals, raising the sole restated issue of whether

the trial court improperly admitted evidence procured as a result of a

warrantless entry into Hiatt’s residence. We affirm.

Facts and Procedural History [2] On September 16, 2015, an arrestee provided a tip to Sergeant John Kauffman

(“Sergeant Kauffman”) and Detective Jeff Wells (“Detective Wells”) of the

Marion Police Department narcotics task force. The tipster stated that Hiatt

was manufacturing methamphetamine on a regular basis, and that Hiatt had

recently moved to a yellow house near the intersection of 8th and Branson.

Sergeant Kauffman and Detective Wells were familiar with Hiatt.

[3] Following the tip, Sergeant Kauffman, Detective Wells, and Detective Leland

Smith (“Detective Smith”) drove together toward the intersection. As they

neared, Sergeant Kauffman saw a yellow building and thought he saw Hiatt in

1 Ind. Code § 35-48-4-1.1(a)(1). 2 I.C. § 35-48-4-13(b)(1). 3 I.C. § 35-48-4-8.3(b)(1).

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 2 of 13 an upstairs apartment window. Both Sergeant Kauffman and Detective Wells

exited the vehicle, crossed the street for a better view, and confirmed it was

Hiatt. From the street, Sergeant Kauffman and Detective Wells observed Hiatt.

There was a fan running in the window. Detective Wells saw Hiatt in the

motion of crushing something, and Sergeant Kauffman saw Hiatt holding a red

bottle and a funnel, pouring liquid into the funnel. Sergeant Kauffman thought

the red bottle resembled that of fuel needed to produce methamphetamine. He

believed Hiatt was in the process of making the drug.

[4] Sergeant Kauffman called Detective Joshua Zigler (“Detective Zigler”), who

arrived minutes later. Detective Zigler was in plain clothes, in an unmarked

vehicle. Instead of parking down the street, Detective Zigler inadvertently

pulled up close to the residence. As Detective Zigler exited and locked his

vehicle, its horn went off. At this point, Hiatt looked down from the window.

Improvising, Detective Zigler shouted to Hiatt that he had a flat tire and asked

Hiatt if he had a jack. Hiatt then exited the apartment. When Hiatt came

downstairs, Sergeant Kauffman took him into custody. Hiatt yelled upstairs,

directing someone inside the apartment to shut the door.

[5] Once Hiatt was in custody, Detective Zigler and Detective Smith went upstairs

toward the apartment Hiatt had exited. When they reached the door, Detective

Zigler pushed it open and yelled “police.” Detective Zigler then entered the

doorway, pushed the door all the way open, and saw two women. He told

them to leave the apartment. Detective Zigler next conducted a protective

sweep to make sure no one else was inside. When conducting the protective

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 3 of 13 sweep, Detective Zigler did not find anyone else. However, he did see certain

items that appeared to be associated with manufacturing methamphetamine.

Detective Zigler then evacuated the other apartments in the building.

[6] Once the scene was secure, Detective Zigler and Sergeant Kauffman left to

obtain a search warrant, a process which typically takes thirty minutes or more.

To obtain the search warrant, Detective Zigler and Sergeant Kauffman

participated in a telephonic probable cause hearing. During the hearing, they

told the judge about law enforcement observations both before entering the

residence and during Detective Zigler’s protective sweep. The judge issued the

search warrant and, pursuant to the warrant, law enforcement began collecting

evidence from inside the residence as well as from a trash bag on the curb.

[7] On September 22, 2016, the State charged Hiatt with (1) Dealing in

Methamphetamine, as a Level 4 felony4; (2) Maintaining a Common Nuisance,

as a Level 6 felony5; (3) Dumping Controlled Substance Waste, as a Level 6

felony6; and (4) Possession of Paraphernalia, as a Class C misdemeanor7.

[8] Hiatt filed a Motion to Suppress Evidence on January 5, 2016 and the trial

court held a hearing on the motion. The trial court denied Hiatt’s motion on

4 I.C. § 35-48-4-1.1(a)(1). 5 I.C. § 35-48-4-13(b)(1). 6 I.C. § 35-48-4-4.1(a)(2). 7 I.C. § 35-48-4-8.3(b)(1).

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 4 of 13 January 12, 2016 and on that day a jury trial commenced. Following the trial,

Hiatt was convicted of (1) Dealing in Methamphetamine, (2) Maintaining a

Common Nuisance, and (3) Possession of Paraphernalia.

[9] This appeal ensued.

Discussion and Decision [10] Hiatt argues that Detective Zigler’s warrantless entry into his apartment

violated his rights under the Fourth Amendment to the U.S. Constitution and

Article 1, Section 11 of the Indiana Constitution. He contends that any

evidence procured during the protective sweep should not have been admitted.

Moreover, Hiatt argues that because a warrant was subsequently obtained

based on items Detective Zigler observed in plain view while inside the

apartment, all evidence seized pursuant to the warrant must be suppressed as

“fruit of the poisonous tree.”

[11] Hiatt asks us to review the trial court’s denial of his Motion to Suppress

Evidence. However, where a pretrial motion to suppress is denied, the case

proceeds to trial, and the defendant renews his objection to the admission of

evidence, the issue is best framed as challenging the admission of evidence at

trial. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). The trial court has broad

discretion to rule on the admissibility of evidence at trial. Guilmette v. State, 14

N.E.3d 38, 40 (Ind. 2014). We review the court’s ruling for abuse of that

discretion and reverse only when admission is clearly against the logic and

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 5 of 13 effect of the facts and circumstances before the court and the error affects a

party’s substantial rights. Id. (citation and quotation marks omitted). An

appellant’s challenge to the constitutionality of a search or seizure raises a

question of law, which we review de novo. Id. at 40-41.

Fourth Amendment [12] The Fourth Amendment provides, in relevant part: “The right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .” The Fourth Amendment's

protections against unreasonable searches and seizures extend to the States

through the Fourteenth Amendment. Berry v. State, 704 N.E.2d 462, 464-65

(Ind. 1998) (citing Mapp v. Ohio, 367 U.S. 643, 650 (1961)).

[13] “It is axiomatic that the ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.’” State v. Straub, 749

N.E.2d 593, 597 (Ind. Ct. App. 2001) (quoting U.S. v. U.S. Dist. Court for E. Dist.

of Mich., S. Div., 407 U.S. 297, 313 (1972)). A principal protection against

unnecessary intrusions into private dwellings is the Fourth Amendment’s

warrant requirement. Straub, 749 N.E.2d at 597. Searches performed by

government officials without obtaining warrants are per se unreasonable under

the Fourth Amendment, subject to a “‘few specifically established and well-

delineated exceptions.’” Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006)

(quoting Katz v. U.S., 389 U.S. 347, 357 (1967)). The State bears the burden of

proving that an exception to the warrant requirement applied at the time of a

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 6 of 13 warrantless search. Id. The remedy for an illegal warrantless search is the

suppression of the evidence obtained from the search. Cudworth v. State, 818

N.E.2d 133, 137 (Ind. Ct. App. 2004), trans. denied.

[14] One exception to the warrant requirement is where exigent circumstances exist.

Holder, 847 N.E.2d at 936. As our supreme court has explained:

The warrant requirement becomes inapplicable where the “‘exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290, 301 (1978). Among the exigencies that may properly excuse the warrant requirement are threats to the lives and safety of officers and others and the imminent destruction of evidence. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85, 95 (1990). Law enforcement may be excused from the warrant requirement because of exigent circumstances based on concern for safety as long as the State can prove that a delay to wait for a warrant would gravely endanger the lives of police officers and others. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782, 787 (1967); see also Geimer v. State, 591 N.E.2d 1016, 1019 (Ind. 1992).

Id. at 936-37. A police officer's subjective belief that exigent circumstances exist

is insufficient to justify a warrantless entry into a home or apartment; rather, the

test is objective and the State must establish that the circumstances as they

appear at the moment of entry would lead a reasonable, experienced law

enforcement officer to believe that someone inside is in need of immediate aid.

Cudworth, 818 N.E.2d at 137 (citations omitted). Thus, “[t]he need to protect or

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 7 of 13 preserve life or avoid serious injury is justification for what would be otherwise

illegal . . . .” Mincey, 437 U.S. at 392 (citation and quotation marks omitted).

[15] The State contends that based on observations of Hiatt in the window, the

police believed Hiatt to be in the process of producing methamphetamine.

Therefore, because “[i]t is well known, and the record makes it clear, that the

explosion and fire rate is very high with methamphetamine labs and the

inhalation of fumes can be deadly[,]” (Appellee’s Br. at 13), Detective Zigler

was justified in making a warrantless entry to evacuate anyone inside the

apartment. The State further notes that, based on Hiatt yelling upstairs to

someone to shut the apartment door, it was clear to the police that there was

someone in the apartment in danger due to the methamphetamine lab.

[16] Hiatt argues, however, that based on the circumstances as they appeared at the

moment of entry, the State failed to show that it was objectively reasonable to

believe anyone was in need of immediate aid. He contends that although law

enforcement “observed Mr. Hiatt pouring contents into a funnel . . . there was

no testimony given in regards to hearing screams . . . smelling ether, observing

smoke or fire.” (Appellant’s Br. at 11.) Hiatt particularly emphasizes the lack

of an odor detected at his residence, arguing that due to the lack of an odor, this

case is distinguishable from Holder.

[17] In Holder, our supreme court upheld a warrantless search when police officers

detected the strong odor of ether—a flammable and explosive gas associated

with the manufacture of methamphetamine—emanating from a residence and

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 8 of 13 knew that a young child remained inside the house. The court concluded that

“[b]ecause the officers’ reasons for the warrantless entry included their concern

for substantial risk of immediate danger to an occupant from the highly

flammable and explosive atmosphere in the home, their warrantless entry was

justified by exigent circumstances.” Holder, 847 N.E.2d at 939. The court then

observed that “[s]everal courts have concluded that a belief that an occupied

residence contains a methamphetamine laboratory, which belief is found on

probable cause based largely on observation of odors emanating from the home,

presents exigent circumstances permitting a warrantless search for the

occupants’ safety.” Id. (citing a string of federal cases).

[18] We do not read Holder so narrowly as to preclude the existence of exigent

circumstances where the police did not detect the odor of a methamphetamine

lab, particularly where, as here, officers observed Hiatt in the process of

manufacturing methamphetamine through a window.

[19] Hiatt further argues that if exigent circumstances existed, then law enforcement

should have reacted differently by, for example, immediately entering the

apartment instead of calling Detective Zigler to the scene. Hiatt, thus, seems to

call into question whether the officers truly believed there were exigent

circumstances. However, “[a]n action is ‘reasonable’ under the Fourth

Amendment, regardless of the individual officer’s state of mind, as long as the

circumstances, viewed objectively, justify [the] action. The officer's subjective

motivation is irrelevant.” Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006)

(citations and quotation marks omitted) (emphasis in original).

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 9 of 13 [20] Here, officers from the narcotics task force investigated a tip that Hiatt was

producing methamphetamine. They saw Hiatt crushing something and pouring

what looked like liquid fuel, an ingredient in methamphetamine, into a funnel

with the window fan on. They believed Hiatt was in the process of

manufacturing methamphetamine. After Hiatt exited the apartment and

encountered law enforcement, Hiatt made it clear there was someone still inside

the apartment when he yelled upstairs. The circumstances here, viewed

objectively, support the reasonable belief that the dangers of manufacturing

methamphetamine presented a threat to the safety of anyone in the apartment.

As this Court stated in VanWinkle v. State, “[t]he combined knowledge of the

fact that the manufacture of methamphetamine can be very dangerous and the

fact that there were still other people in the residence would cause any

reasonable police officer to see the immediate need to remove any remaining

persons from the residence.” 764 N.E.2d 258, 266 (Ind. Ct. App. 2002), trans.

denied.

[21] Hiatt also cursorily argues that the police officers improperly created exigent

circumstances. Although it is true that police officers cannot create exigent

circumstances to justify warrantless searches, Hawkins v. State, 626 N.E.2d 436,

439 (Ind. 1993), Hiatt does not set forth which circumstances the police officers

purportedly created. Nonetheless, we find that the exigent circumstances

here—the dangers that inhere in manufacturing methamphetamine—existed at

the time the officers first observed Hiatt.

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 10 of 13 [22] In sum, we conclude that the circumstances of this case justified the warrantless

entry of Hiatt’s residence under the exigent circumstances exception to the

Fourth Amendment’s warrant requirement. Therefore, the trial court did not

abuse its discretion with respect to the Fourth Amendment in admitting

evidence obtained as a result of the warrantless search or subsequent warrant.

Article 1, Section 11 [23] Hiatt also argues that the warrantless search of his apartment violated Article 1,

Section 11 of the Indiana Constitution.

[24] The language of Section 11 mirrors the Fourth Amendment’s protections

against unreasonable searches and seizures. U.S. Const. amend. IV; Ind.

Const. art 1, § 11; Trowbridge v. State, 717 N.E.2d 138, 143 (Ind. 1999).

However, the test for determining a rights violation differs between the two

provisions. Trowbridge, 717 N.E.2d at 143. Analysis under Article 1, Section

11 turns on the specific facts of each case and whether police conduct is

reasonable in light of the totality of the circumstances. VanWinkle, 764 N.E.2d

at 266. “[T]he totality of the circumstances requires consideration of both the

degree of intrusion into the subject’s ordinary activities and the basis upon

which the officer selected the subject of the search or seizure. Litchfield v. State,

824 N.E.2d 356, 360 (Ind. 2005). “Our determination of the reasonableness of

a search or seizure under Section 11 often ‘turn[s] on a balance of: 1) the degree

of concern, suspicion, or knowledge that a violation has occurred, 2) the degree

of intrusion the method of the search or seizure imposes on the citizen’s

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 11 of 13 ordinary activities, and 3) the extent of law enforcement needs.’” Holder, 847

N.E.2d at 940 (quoting Litchfield, 824 N.E.2d at 361).

[25] Here, based on their observations, law enforcement officers had a high degree

of suspicion that Hiatt was actively making methamphetamine. Although the

degree of intrusion was high in entering Hiatt’s apartment, law enforcement’s

need to ensure safety in light of the known dangers associated with clandestine

methamphetamine labs outweighs the intrusion. We therefore conclude that,

based on the totality of the circumstances, Detective Zigler’s entry into the

apartment was not unreasonable and thus did not violate Article 1, Section 11

of the Indiana Constitution. See VanWinkle, 764 N.E.2d at 267 (finding that the

warrantless entry into a residence was reasonable under Article 1, Section 11

“because, had the officers taken the time to get a search warrant at that point,

the people remaining in the residence could have been injured by the volatile

[methamphetamine] manufacturing process . . . .”). Thus, the trial court did

not abuse its discretion in admitting evidence procured as a result of the

warrantless entry or the warrant founded thereupon.

Conclusion [26] Because Detective Zigler’s warrantless entry into Hiatt’s apartment did not

violate Hiatt’s federal or state constitutional rights, the trial court did not abuse

its discretion in admitting evidence obtained as a result of the warrantless

search or the subsequent search warrant.

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 12 of 13 [27] Affirmed.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A04-1603-CR-477 |October 19, 2016 Page 13 of 13