Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Aug 21 2013, 5:29 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                              GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 JODI KATHRYN STEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARCELLA MULLINS,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 44A03-1303-CR-102
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


        INTERLOCUTORY APPEAL FROM THE LAGRANGE CIRCUIT COURT
                   The Honorable J. Scott Vanderbeck, Judge
                        Cause No. 44C01-1205-FB-14



                                      August 21, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       The appellant-defendant, Marcella Mullins, brings this interlocutory appeal

challenging the trial court’s denial of her motion to suppress following the police

officer’s protective sweep of her residence and subsequent seizure of drugs and other

contraband that were in plain view. Mullins argues that the alleged protective sweep that

was performed after receiving reports that there was a burglary in progress at the

residence violated both the Fourth Amendment to the United States Constitution and

Article I, Section 11 of the Indiana Constitution. Mullins claims that the protective

sweep of the residence was too broad and impermissibly led to the officers’ discovery of

the drugs and paraphernalia.

       We find that the officer’s sweep of the suspected burglary crime scene in areas

where other suspects and potential victims might be found was valid under both the

Federal and State Constitutions. We also conclude that Mullins’s remaining issues that

challenge the validity of the search warrant, her arrest, and recorded statement that was

made later, are not available in this interlocutory appeal. Thus, we affirm the trial court’s

denial of Mullins’s denial of her motion to suppress and remand this case for trial.

                                          FACTS

       On May 11, 2012, at approximately 8:00 p.m., LaGrange County Sheriff’s Deputy

Ryan Plummer received a dispatch regarding a burglary in progress at a residence in

Wolcottville. The dispatcher indicated that the suspect had entered the house with a



                                             2
knife. Although a description of the individual was given, no name of the suspected

burglar was supplied.

       One of the witnesses informed the dispatcher that the man was loading electronics

and other items from the residence into some garbage bags. Deputy Plummer arrived at

the residence in about seven minutes where he met Marshall Justin Baugh of the

Wolcottville Town Marshall’s Office. The witnesses at the scene were on the street and

identified the residence.

       Deputy Plummer saw the individual, who was later identified as Cody Mullins,

through the bay windows. Deputy Plummer watched Cody toss CDs and electronic

equipment into the bags. At some point, Deputy Plummer drew his gun and verbally

ordered Cody from the residence at gunpoint through the open main door.           Cody

complied and was patted down and handcuffed.

       While Marshall Baugh detained Cody, Deputy Plummer entered the residence

through the main door that was open and conducted a “sweep” of the residence for other

suspects and potential victims. Tr. p. 7. The officer knew through his experience that

burglars often work in teams, where entry is made in one location and other accomplices

subsequently enter the residence at another point. Deputy Plummer did not know if Cody

was acting alone. He verbally announced his presence and cleared each room only for

places that a person might hide. Detective Plummer did not touch anything or open any

drawers.



                                           3
          Deputy Plummer noticed several garbage bags on the floor underneath the bay

windows and a number of baggies of a white powdery substance, some hollowed

pintubes, and hanging marijuana leaves in a bedroom. Deputy Plummer also detected a

strong chemical odor consistent with the manufacture of methamphetamine in the

upstairs of the residence. The cursory sweep lasted for approximately five minutes, and

Deputy Plummer exited the house after he was unable to locate any other persons in the

residence.

          Thereafter, Deputy Plummer advised Cody of his Miranda1 rights. Cody stated

that he was Frank Mullins’s brother, who rented the residence. Cody stated that he lived

there but was removing his property. The officers did not arrest Cody at that time.

          Frank was later summoned from his place of employment and was also advised of

his Miranda rights. Deputy Plummer informed Frank of the suspected drugs that were

found in the bedroom, and Frank confirmed that the bedroom belonged to him and

Mullins, his wife. After speaking with counsel, Frank declined consent to a search of the

residence.

          Thereafter, Detective Plummer applied for a search warrant based upon what he

discovered during the sweep of the residence. When executing the warrant, the officers

discovered multiple pipes and smoking devices, along with folded foils and other trash

from the manufacture of methamphetamine. A substantial quantity of a white powdery

substance was also seized that “field tested” positive for methamphetamine. Tr. p. 10-11.

1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               4
Finally, the officer discovered a large quantity of precursors and active methamphetamine

labs hidden in an attic space.

       While the search was being conducted, Mullins came home from work and

appeared to be “extremely excited.” Id. at 12. After Mullins was arrested for maintaining

a common nuisance in light of the evidence that was found, the officers searched her

backpack incident to the arrest. During that search, the officers found a plastic bag of

wadded coffee filters that contained a white powdery residue that tested positive for

methamphetamine. Mullins was then advised of her Miranda rights, but she declined to

answer any of the officers’ questions. Frank was questioned again, and he admitted using

methamphetamine but denied any knowledge of controlled substances at the residence.

       Several days later, Mullins made two requests through the jail system to speak

with Deputy Plummer.        Mullins was re-advised of her Miranda rights, which she

acknowledged and signed. In a recorded interview, Mullins stated that she assisted Frank

purchase precursors for him to manufacture methamphetamine, but claimed that she did

not know that he was actually manufacturing methamphetamine at the house. Mullins

admitted to using methamphetamine and that she and Frank rented the residence and

maintained it together.

       Thereafter, the State charged Mullins with dealing in methamphetamine, a class B

felony, possession of precursors, a class D felony, possession of methamphetamine, a

class C felony, maintaining a common nuisance, a class D felony, possession of



                                           5
marijuana, a class A misdemeanor, and possession of paraphernalia, a class A

misdemeanor.

       On October 8, 2012, Mullins filed a motion to suppress based upon the officers’

warrantless entry of the residence. During a hearing on the motion that was conducted on

December 18, 2012, Cody testified that he had been released from jail one week earlier

and had spent about three nights at the residence. Cody did not have a key to the house,

so he used a knife to enter. At some point, Cody stated that he saw “a guy” standing

across the road, who asked him what he was doing. Tr. p. 21. Cody became angry and

replied that it was “none of [his] business.” Id. at 21, 23. Cody then saw the officers

outside and complied with their request to leave the house.

       Marshall Baugh told Cody that Deputy Plummer was inside checking for other

individuals. Cody alleged that he was just sorting through his clothes in the garbage bags

to change, but that he was not moving. Frank testified that his brother lived there after

getting out of jail and that his landlord, Frank Bonaker, would not have known that Cody

was living there.

       On December 18, 2012, the trial court denied Mullins’s motion to suppress,

finding that “the search of the residence was conducted under an exception to the warrant

requirement.” Appellant’s App. p. 57. More particularly, the trial court ruled that the

“search was done incident to an arrest for burglary, in areas where the Defendant had

been located or of adjoining areas that could reasonably contain a hiding person who



                                            6
might have jeopardized the officer’s safety.” Id. Thereafter, Mullins filed a motion to

certify the trial court’s order for interlocutory appeal, which we granted on May 6, 2013.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

   In determining whether the officers’ entry and subsequent sweep of the residence for

other suspects and potential victims was valid, we initially observe that our standard of

review for the denial of a motion to suppress evidence is similar to other sufficiency

issues. In particular, we determine whether substantial evidence of probative value exists

to support the trial court’s denial of the motion. We do not reweigh the evidence and

consider conflicting evidence most favorable to the trial court’s ruling. However, this

review is different from other sufficiency matters in that we also consider uncontested

evidence that is favorable to the defendant. Duncan v. State, 799 N.E.2d 538, 542 (Ind.

Ct. App. 2003). We may affirm the trial court’s ruling if it is sustainable on any legal

basis in the record, even though it was not the reason that the trial court enunciated. Scott

v. State, 883 N.E.2d 147, 152 (Ind. Ct. App. 2008).

                              II. Fourth Amendment Claims

       As discussed above, Mullins argues that the trial court erred in denying her motion

to suppress because the search of her residence was improper. More particularly, Mullins

claims that the police officers’ actions were conducted under the “guise of a protective

sweep” and, therefore, violated the Fourth Amendment to the United States Constitution.

Appellant’s Br. p. 11.

                                             7
       The Fourth Amendment protects privacy and possessory interests by prohibiting

unreasonable searches and seizures. Johnson v. State, 710 N.E.2d 925, 927 (Ind. Ct. App.

1999). The overriding function of the Fourth Amendment is to protect personal privacy

and dignity against unwarranted intrusion by the State. Carr v. State, 728 N.E.2d 125,

128 (Ind. 2000). For a search to be reasonable under the Fourth Amendment, a warrant is

required unless an exception applies. Montgomery v. State, 904 N.E.2d 374, 378 (Ind.

Ct. App. 2009).

       One specific exception was recognized in Bryant v. State, where our Supreme

Court determined that “police may enter private property to protect that property when

they reasonably believe the premises have recently been or are being burglarized.” 660

N.E.2d 290, 300-01 (Ind. 1995). As a result, it was found that such an entry and search

does not offend the Fourth Amendment because the emergency circumstances

surrounding a potential burglary justify the action. Id. at 301. The search, however, is

limited to areas in which an intruder could reasonably conceal himself. Thus, police

officers may not use such situations as an excuse to conduct a general search for

evidence. Id.

       The facts in Bryant established that the police received an emergency call from a

neighbor, who reported that a home alarm was sounding. When several sheriff’s deputies

arrived at the scene, they observed fresh pry marks on an open door. It was determined

that entry by the police to conduct a protective sweep of the residence did not violate the

Fourth Amendment because:

                                            8
       The totality of these circumstances reveals that exigent circumstances
       justified the search. The sounding alarm, fresh pry marks and open door
       led police to a reasonable belief that a burglary was in progress or had
       recently occurred. The officers searched no more area than was reasonably
       necessary, but still discovered hundreds of marijuana plants in plain view.
       Admission of evidence found during the search was therefore not error.

Id.

       Here, there is no question—nor does Mullins contest—that the officers reasonably

believed that the residence was being burglarized when they arrived. Indeed, the dispatch

that was issued indicated that a burglary was “in progress” at the Wolcottville residence.

Tr. p. 3. The dispatch included a description of the suspected burglar and indicated that

he had entered the residence with a knife. Id. at 4, 6, 13, 18. The witnesses to the

burglary were still talking with the dispatcher on the telephone and advised that the

individual was loading electronics and other property into garbage bags. Id. at 4, 6.

Deputy Plummer and Marshall Baugh arrived within minutes of the call.

       The witnesses at the scene were on the street when the two officers arrived and

identified the residence for them. Tr. p. 5, 13. Through the large front bay windows,

Deputy Plummer noticed a man matching the description that the witnesses gave, in the

living room, loading CDs and electronic equipment into garbage bags. At this point, the

information that the witnesses supplied regarding the description of the suspected burglar,

his presence in the residence, and his seemingly criminal actions, were verified by the

officers on the scene. All of this information led to the reasonable belief that a burglary

was in progress.


                                            9
       Deputy Plummer immediately ordered the man, who was later identified as Cody

Mullins, from the residence at gunpoint. Cody complied and was patted down and

handcuffed. The officers did not ask Cody any questions at that point, although Marshall

Baugh recognized him from a prior arrest. Tr. p. 7, 19. And Deputy Plummer did not

speak with Cody until after the initial cursory sweep of the premises. Tr. p. 8, 14-15, 22.

More particularly, Deputy Plummer did not know Cody’s name or his claimed purpose

for being there at the time of the entry and subsequent sweep of the residence.

       While Marshall Baugh detained Cody, Deputy Plummer immediately entered the

residence through the main door that was open and cleared the residence for other

suspects and potential victims. Tr. p. 7. In our view, the officers’ conduct was entirely

reasonable.   Although the witnesses did not state whether any other suspects were

involved, Deputy Plummer did not have personal knowledge that Cody was alone, and

entry by a second suspect could have been made outside the witness’s observation from

the front of the residence. In other words, it was reasonable for the officer to confirm that

Cody was alone in the residence.

       Additionally, as was noted in Maryland v. Buie, the United States Supreme Court

observed that a protective sweep may be conducted in rooms that immediately adjoin the

place of the arrest or of areas that might, given facts articulable by the searching officer,

contain a person who is hiding that might jeopardize the officer’s safety. 494 U.S. 325,

334-35 (1990). And in interpreting Buie, at least one federal court of appeals has

specifically held that Buie permits the police to “walk through rooms adjacent to the one

                                             10
in which they make an arrest to ensure that no danger lurks within.” United States v.

Brown, 64 F.3d 1083, 1086 (7th Cir. 1995). It has also been determined that

       [o]fficers should not be forced to suffer preventable risk of ambush, even
       where a location is so isolated that the officers could conceivably be
       protected without entering the area. An ambush in a confined setting of
       unknown configuration is more to be feared than if it were in the open,
       more familiar surroundings.

United States v. Tapia, 610 F.3d 505, 511 (7th Cir. 2010).

       Applying the above principles, we believe that the scope of Deputy Plummer’s

sweep through the residence was reasonable because the record shows that each room

was cleared only for places that a person might hide. As noted above, Deputy Plummer

did not touch anything or open any drawers. Tr. p. 7, 9. Moreover, the situation here that

involved an on-going burglary permitted Deputy Plummer to conduct a cursory sweep of

the entire residence to clear what he reasonably believed to be a crime scene. Even more

compelling, there is no evidence establishing that Deputy Plummer used this situation as

an excuse to conduct a general search for evidence, which the holding in Bryant

prohibits.

       In short, Mullins’s claim that the protective sweep of the residence was unlawful

under the Fourth Amendment fails, and the trial court did not err in denying Mullins’s

motion to suppress.




                                III. Indiana Constitution

                                           11
       Notwithstanding our conclusion that the protective sweep and warrantless search

of the residence did not violate the Fourth Amendment, Mullins argues that the police

officers’ actions violated the provisions of Article I, Section 11 of the Indiana

Constitution.   More specifically, Mullins asserts that the protective sweep was not

reasonable in this instance because “the officers had little degree of concern, suspicion or

knowledge that a violation ha[d] occurred.” Appellant’s Br. p. 9.      Therefore, the “five

minute search of the entire Mullins home was highly intrusive and law enforcement

needs did not justify or require the search.” Id.

       The purpose of Article I, Section 11 is “to protect from unreasonable police

activity, those areas of life that Hoosiers regard as private.” Trotter v. State, 933 N.E.2d

572, 580 (Ind. Ct. App. 2010). Although the language of Article I, Section 11 tracks the

Fourth Amendment verbatim, Indiana has explicitly rejected the expectation of privacy as

a test of the reasonableness of a search or seizure. Litchfield v. State, 824 N.E.2d 356,

359 (Ind. 2005).     Instead, the legality of a governmental search under the Indiana

Constitution turns on an evaluation of the reasonableness of police conduct under the

totality of the circumstances. Id.

       The reasonableness of a search or seizure depends 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 ordinary activities;

and 3) the extent of law enforcement needs.” Id. at 361. The burden is on the State to



                                              12
show that the intrusion was reasonable in light of the totality of the circumstances.

Hathaway v. State, 906 N.E.2d 941, 945 (Ind. Ct. App. 2009).

       In this case, Mullins does not prevail on her claim that the degree of intrusion was

beyond what was necessary to execute the arrest because the officers had sufficient

concern or knowledge that a “knowing violation had occurred” under the first factor

under Litchfield. When Deputy Plummer responded to the dispatch of a burglary in

progress, the information given to him by the witnesses was confirmed by him at the

scene. Tr. p. 4-6. As noted above, the police officers could see Cody inside the residence

loading property into garbage bags. Id. at 4-5, 14. In short, the degree of concern,

suspicion, or knowledge that a violation had occurred in this case was high. Once Cody

was removed from the living room and handcuffed outside, Deputy Plummer

immediately conducted the cursory entry and sweep for other suspects and potential

victims. And he asked no questions at that point. Id. at 6-8, 14-15, 19, 22.

       Also, Deputy Plummer’s cursory entry and sweep of the house was minimally

intrusive in light of the seriousness of the situation. The sweep lasted only four to five

minutes, Deputy Plummer did not touch anything, and did not open any drawers. Id. at 7-

8. Rather, he looked only in places where a person might hide. Id. at 7. Moreover, an

accomplice or injured homeowner could have been present at the residence. In short, the

intrusion by Deputy Plummer was no greater than the parameters set forth in Bryant—

areas in which an intruder could conceal himself.



                                            13
       Finally, we note that the need for law enforcement to conduct a sweep of the crime

scene was high. The situation was on-going, and all of the facts suggesting a burglary in

progress were confirmed by the officers prior to entry. And such an uncertainty created

by the totality of the circumstances created a need for the police to take immediate action.

Montgomery v. State, 904 N.E.2d 374, 383 (Ind. Ct. App. 2009). Also, what Deputy

Plummer knew at the time of the cursory sweep was that facts supporting a burglary in

progress were called into police and he had verified those facts upon his arrival. Deputy

Plummer detained an individual matching the description of a man who had gained entry

into the residence by a knife after he observed the individual placing property into the

garbage bags. Deputy Plummer then swept the suspected crime scene for other suspects

and potential victims.

       In our view, Deputy Plummer’s actions were reasonable under the totality of the

circumstances and under the Indiana Constitution. As a result, Mullins’s challenge to the

trial court’s denial of her motion to suppress under the Indiana Constitution fails.

                     IV. Remaining Grounds for Motion to Suppress

       Finally, Mullins claims that the trial court erred in denying her motion to suppress

on other grounds regarding the validity of the search warrant, her arrest, and a recorded

statement that she made to police officers several days following her arrest.

       In general, we note that a party “may not add to or change [the] grounds for

objections in the reviewing court.” Treadway v. State, 924 N.E.2d 621, 631 (Ind. 2010).

And any ground not raised at trial is not available on appeal. Id. Also, issues not

                                             14
properly presented to the trial court in ruling on the interlocutory order are unavailable on

interlocutory appeal. Curtis v. State, 948 N.E.2d 1143, 1147 (Ind. 2011).

       In this case, we note that Mullins did not move to suppress the evidence in the trial

court on the basis that the search warrant was invalid, nor did she challenge the validity

of the arrest or the propriety of her recorded statement. Appellant’s App. p. 44-45, 56.

No evidence was presented on these issues at the suppression hearing, and the parties did

not brief these issues. Also, Mullins’s motion to this court to certify the trial court’s

order did not include any search warrant issue or challenge to her arrest or recorded

statement. Rather, Mullins’s motion addressed only the initial cursory entry and search.

She may raise these remaining issues by objecting at trial.

       The judgment of the trial court is affirmed and this cause is remanded for trial.

FRIEDLANDER, J., and VAIDIK, Jr., concur.




                                             15
