Pursuant to Ind.Appellate Rule 65(D),
this 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                                         Jul 16 2013, 7:01 am
case.




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CHRISTOPHER A. CAGE                              GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 CHANDRA K. HEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JERAMIE MURDOCK,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 48A02-1210-CR-880
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Thomas Newman, Jr., Judge
                            Cause No. 48C03-1207-FB-1285


                                       July 16, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                         Case Summary

      Jeramie Murdock appeals his convictions and sentence for Class B felony dealing

in methamphetamine, Class D felony possession of methamphetamine, and Class D

felony maintaining a common nuisance. We affirm.

                                                Issues

      The issues before the court are:

                I.        whether the trial court properly admitted evidence that
                          was collected from Murdock’s trashcan without a
                          warrant;

                II.       whether the trial court properly admitted evidence that
                          was gathered inside Murdock’s residence following an
                          entry without a warrant; and

                III.      whether Murdock’s sentence is inappropriate.

                                                Facts

      On July 9, 2012, officers were dispatched to 914 East 21st Street in Anderson in

response   to        an   anonymous     phone     call   that   someone   was   manufacturing

methamphetamine. Upon arrival, Officer Jacob Lewis, along with two other officers

from the Anderson Police Department, walked up to the front door and could smell “the

chemical odors” that are known to be associated with methamphetamine, based on their

training and experience. Tr. p. 13. Officer Lewis knocked on the door and saw a light in

the south window turn off immediately. The officers contacted the Madison County

Drug Task Force (“Task Force”) and secured the home from the outside until their

arrival. The Task Force officers have undergone extensive training in dealing with



                                                  2
methamphetamine labs and are knowledgeable about the hazards associated with

manufacturing methamphetamine.

          Task Force officers arrived and noticed the same chemical odors. The officers

saw a trashcan located near the south part of the residence placed as though it was ready

for trash collection. They opened the lid to determine whether the odors were originating

there. The officers determined the odors were not emanating from the trash, but they did

find precursors for manufacturing methamphetamine. The officers knocked on the door

and the window several times more without any response. They then entered the home

because of a risk of an explosion caused by attempting to dispose of methamphetamine or

an exposure of gasses from manufacturing methamphetamine that could cause respiratory

issues.

          The officers found Murdock inside and observed several precursors to

methamphetamine, such as a Coleman fuel can and a plastic container with organic

solvent. They then applied for and received a search warrant and subsequently recovered

digital scales, a pill bottle, containers of salt, empty Sudafed blister packs, and a two-liter

plastic bottle containing ammonium nitrate, sodium hydroxide, and organic solvent

hidden in a toilet’s tank.

          Murdock was placed under arrest and charged with Class B felony dealing in

methamphetamine, Class D felony possession of methamphetamine, Class D felony

possession of chemical reagents or precursors with intent to manufacture a controlled

substance, and Class D felony maintaining a common nuisance. The court eventually

dismissed the Class D Felony possession of chemical reagents or precursors charge.

                                              3
Murdock filed a motion to suppress evidence seized during the warrantless search and

seizure. This motion was denied on September 5, 2012, and Murdock filed a motion to

certify an interlocutory appeal, which was also denied. On October 1, 2012, a jury found

Murdock guilty on the three remaining counts. Murdock was sentenced to twenty years

on the Class B felony dealing in methamphetamine conviction and three years each on

the Class D felony possession of methamphetamine and Class D felony maintaining a

common nuisance convictions, to run concurrently for a total of twenty years executed.

Murdock now appeals.

                                        Analysis

                                 I. Search and Seizure

       On appeal, we determine whether the trial court abused its discretion when it

admitted evidence obtained without a warrant. Questions regarding the admission of

evidence are left to the sound discretion of the trial court and, on appeal, we review the

court’s decision only for an abuse of that discretion. Fuqua v. State, 984 N.E.2d 709, 713

(Ind. Ct. App. 2013) trans. denied.     We determine whether substantial evidence of

probative value exists to support the trial court’s ruling. Litchfield v. State, 824 N.E.2d

356, 358 (Ind. 2005). We do not reweigh the evidence and we consider conflicting

evidence most favorable to the trial court’s ruling. Id. “[U]nlike the typical sufficiency

of the evidence case where only the evidence favorable to the judgment is considered, we

must also consider the uncontested evidence favorable to the defendant.” Kelley v. State,

825 N.E.2d 420, 424 (Ind. Ct. App. 2005). Trial courts have broad discretion regarding

the admissibility of evidence. Id.

                                            4
       Murdock alleges two constitutional claims. He first claims a violation of the

Indiana Constitution regarding evidence obtained from his trashcan without a search

warrant. He next claims a violation to his Fourth Amendment rights regarding the

seizure of evidence from the warrantless entry of his home.

                                  A. The Trash Search

       Murdock claims that the search of his trash without a warrant violated the Indiana

Constitution. Article I, Section 11 of the Indiana Constitution provides:

              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable search or seizure,
              shall not be violated; and no warrant shall issue, but upon
              probable cause, supported by oath or affirmation, and
              particularly describing the place to be searched, and the
              person or thing to be seized.

       Although the search and seizure provision of the Indiana Constitution tracks the

Fourth Amendment verbatim, our jurisprudence has focused on whether the actions of the

government were “reasonable” under the “totality of the circumstances” and not whether

there was an expectation of privacy. Fuqua, 984 N.E.2d at 714 (quoting Litchfield, 824

N.E.2d at 359). The reasonableness of a search or seizure turns on a balancing 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. Litchfield, 824 N.E.2d at 361.

       Murdock claims that his trashcan was located in the immediate area of the garage

and that the officers encroached upon the curtilage of his home when they entered the

backyard without a warrant. Murdock argues that curtilage is defined on a case-by-case


                                             5
basis and is dependent on a person’s expectation of privacy.1 However, Article I, Section

11 of the Indiana Constitution focuses on reasonableness, not expectations of privacy.

“[T]he reasonableness of an officer conduct in searching a citizen’s trash does not turn on

whether or not the police entered onto the citizen’s property. Property lines are irrelevant

to the degree of suspicion of a violation . . . .” Id. Instead, the court recognizes a two-

step analysis to determine if the trash is searchable:

                First, the “trash must be retrieved in substantially the same
                manner as the trash collector would take it.” Second, the
                search must be based on an “articulable individualized
                suspicion that illegal activity is or has been taking place,
                essentially the same as is required for a ‘Terry stop’ of an
                automobile.”

Fuqua, 984 N.E.2d at 714 (citations omitted).

        The facts most favorable to the decision indicate that officers believed the trash

was abandoned in a manner consistent with that of someone disposing of it for trash

collection. To the extent that Murdock argues otherwise, he is improperly asking us to

reweigh the evidence.          Further, the anonymous tip that led law enforcement to the

residence and the chemical odors were sufficient factors to indicate that the officers, who

were trained to recognize the smell of and deal with methamphetamine and were aware of

its dangers, had reasonable suspicion to look inside the trashcan.                      They reasonably




1
  Murdock seems to make a separate argument under the Fourth Amendment regarding the officers’ entry
onto his curtilage and a sniff of the downstairs window of his home. A warrantless entry of the curtilage
is permitted under the Fourth Amendment when exigent circumstances exist. Holder v. State, 847 N.E.2d
930, 936 (Ind. 2006). The officers in Holder could smell an ether odor associated with methamphetamine
from a far distance, and they were justified to enter the curtilage because of the significant smell of fumes
and flammable chemicals that posed a danger to others. Id. The same is true here.
                                                     6
believed that the chemical odors could be coming from the trashcan, located near the

south part of the residence, therefore, justifying a search of the trash.

                                 B. Entry to the Residence

       Murdock also alleges that a warrant was required for the police to enter his home.

Under the Fourth Amendment, a search without a warrant requires the State to prove an

exception to the warrant requirement applicable at the time of the search. Holder, 847

N.E.2d at 935 (quoting White v. State, 772 N.E.2d 408, 411 (Ind. 2002)). “However,

there are exceptions to the warrant requirement, such as when exigent circumstances

exist.” State v. Crabb, 835 N.E.2d 1068, 1070 (Ind. Ct. App. 2005). Two exigent

circumstances include “threats to the lives and safety of officers and others and the

imminent destruction of evidence.” Holder, 847 N.E.2d at 937 (citing Minnesota v.

Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 1690, (1990)).

       Murdock argues that the officers “could [not] have reasonably believed that

[Murdock] or any other person was actually in any immediate danger or in need of

emergency aid.” Appellant’s Br. p. 15. He further contends that the officers did not have

probable cause to enter the home. We disagree. The officers were aware of a potential

methamphetamine lab based on an anonymous phone call they received, the strong

chemical odors that were present when they arrived, and the precursors found in the

trashcan. The officers knocked on the door and window several times and observed a

light in the residence turn off. This could lead an officer to reasonably believe that, given

the dangers associated with methamphetamine, someone inside the home was in need of

immediate assistance. Officer Jason Brizendine testified that they made the immediate

                                               7
decision to enter “[f]or the safety of anybody inside the residence and also for the safety

of everybody within the area of the residence.” Tr. p. 321. The house was located in a

residential area where other people nearby could be in danger.

        Murdock cites Crabb, 835 N.E.2d at 1068, and Holder, 847 N.E.2d at 930, and

claims his circumstances differ from these cases. In Crabb, the police were investigating

an odor of ether emanating from an apartment where, officers believed, a child was

living; after finding precursors outside in a cooler, they made entry into the apartment

without a warrant. In Holder, which relies in part on Crabb, police officers were justified

to enter the defendant’s home without a warrant when told by the defendant that a small

child and two other adults were inside the home, in addition to being able to smell the

fumes of methamphetamine emanating from his house.                         We do not believe Holder

intended to limit its holding to only when small children are at risk under similar

circumstances. Rather, the court indicated that a threat to the lives of others, including

the officers, is generally sufficient to justify a warrantless entry. Id. at 937. The officers

were justified in entering Murdock’s residence without a warrant when they reasonably

believed that someone was manufacturing methamphetamine inside the home and

someone inside could potentially be in danger, whether it be a child or not. Likewise, the

risk of explosion threatened the safety of others in the neighborhood. This justified the

warrantless entry into Murdock’s home.2



2
  Murdock also argues that circumstances did not demonstrate a reasonable belief that someone inside the
home was destroying evidence. However, we need not address this issue because the evidence most
favorable to the decision indicates that the officers were justified to enter the residence due to the risk of
harm that manufacturing methamphetamine posed to others.
                                                      8
                                II. Inappropriate Sentence

       We now assess whether Murdock’s sentence is inappropriate under Indiana

Appellate Rule 7(B) in light of his character and the nature of the offense.           See

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not

require us to be “extremely” deferential to a trial court’s sentencing decision, we still

must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873

(Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden

of persuading the appellate court that his or her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest –

the aggregate sentence – rather than the trees – consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).



                                             9
       We first determine whether Murdock’s sentence is inappropriate based on the

nature of the offense. Murdock contends that the facts of this case did not involve any

more risk to himself or other persons than any other methamphetamine lab, and states

that no other person was present. Murdock fails to acknowledge the extreme risk of harm

he placed on others when he was manufacturing methamphetamine. The officers testified

about the various dangers of mixing the chemicals to make methamphetamine, including

the risk of explosion and health consequences from the exposure of the chemical

reagents. Murdock’s home was located in a residential neighborhood, which created a

risk of harm to those located nearby, including the police officers.

       Murdock disputes the court’s reliance on his prior criminal history as the single

aggravating factor to his character. He argues that his prior offenses do not make him

“among the worst of the worst offenders.” Appellant’s Br. p. 21. However, “[w]e

concentrate less on comparing the facts of this case to others, whether real or

hypothetical, and more on focusing on the nature, extent, and depravity of the offense for

which the defendant is being sentenced, and what it reveals about the defendant’s

character.” Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009). Murdock has a

lengthy criminal history that includes twenty-one entries in his juvenile record and

various misdemeanor and felony convictions.           He has previously been placed on

probation, on in home detention, and on work release, and had violated each restriction.

The presentence investigation report places him at a high risk to reoffend. Therefore, his

prior criminal history reflects poorly on his character.



                                             10
      Also, Murdock incorrectly argues that the trial court imposed the maximum

sentence of twenty years for Count I and three years for Counts II and III to run

consecutively. The court sentenced Murdock to twenty years for Count I and three years

for Counts II and III to run concurrently for a total of twenty years, hence not imposing

the maximum sentence. He further contends that his pending charges on an unrelated

matter should not have been taken into account. Even ignoring those charges, Murdock’s

criminal history is extensive. Murdock’s sentence was appropriate.

                                       Conclusion

      The evidence most favorable to the decision supports the admission of evidence

obtained during a warrantless search of the trashcan and police entry to his home without

a warrant.      Murdock placed others in danger when he was manufacturing

methamphetamine and has a significant criminal history; both factors are sufficient to

hold that his sentence is not inappropriate. We affirm.

      Affirmed.

NAJAM, J., and BAILEY, J., concur.




                                            11
