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                                 May 24 2013, 9:12 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

MARK K. PHILLIPS                                           GREGORY F. ZOELLER
Boonville, Indiana                                         Attorney General of Indiana

                                                           KARL M. SCHARNBERG
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TONY MONKS,                                         )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )     No. 87A01-1209-CR-405
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE WARRICK CIRCUIT COURT
                           The Honorable David O. Kelley, Judge
                             Cause No. 87C01-1104-FB-1067


                                           May 24, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Tony Monks (“Monks”) presents this discretionary interlocutory appeal from the trial

court’s denial of his motion to suppress evidence obtained when law enforcement officers

entered his apartment to serve a warrant and discovered methamphetamine precursors. We

affirm.

                                                   Issue

          Monks presents one issue for our review, which we restate as whether the trial court’s

denial of his motion to suppress evidence was improper because officers:

          (a)    violated his rights under the Fourth Amendment to the United States
          Constitution by entering the apartment; or

          (b)    violated his rights under the Fifth Amendment to the United States
          Constitution by eliciting incriminating statements before providing Miranda
          warnings.1

                                   Facts and Procedural History

          On April 1, 2010, Sergeant Aaron Bennett of the Warrick County Sheriff’s

Department (“Sergeant Bennett”) went to a residence on Fourth Street in Newburgh, Indiana

to serve an arrest warrant on Emily Duke (“Duke”). He was accompanied by three

Newburgh Police Department officers, Chief of Police Brett Sprinkle, Assistant Chief of

Police Tiger Williams, and canine officer Chad Bailey.

          The officers went to the door of the apartment listed on the warrant as Duke’s



1
  See Miranda v. Arizona, 384 U.S. 436 (1966). Miranda established that a suspect subject to custodial
interrogation has the right to consult with an attorney, a “procedural safeguard” not itself protected by the
Constitution but a “measure to insure that the right against compulsory self-incrimination was protected.”
Davis v. United States, 512 U.S. 452, 456 (1994).

                                                     2
residence and knocked several times. They could hear floorboards creaking as they

continued to knock. After some time, the officers went downstairs and contacted the

building maintenance manager. He was located in the apartment directly below Duke’s

apartment. He confirmed that Duke lived upstairs and stated that, while he had last seen

Duke two days earlier, he had heard someone walking around upstairs while the officers were

knocking.

       Sergeant Bennett went back upstairs and knocked again. He announced the officers’

presence and warned that if the door was not opened it would be forced open. Receiving no

response, Sergeant Bennett went downstairs and obtained the apartment key from the

maintenance manager. Sergeant Bennett unlocked the door to Duke’s apartment but

discovered that the door had been dead bolted. The officers kicked in the door.

       The officers then encountered a woman in the doorway, later identified as Joyce

Mathis (“Mathis”), who is Monks’s mother. The smell of ether was immediately detectable.

On a bar separating the living room and kitchen, there was a clear liquid in a Mason jar,

aluminum foil, salt, gloves, baggies, and a two-liter bottle containing white residue. Monks,

who had been in the shower, was allowed to dress and sit beside Mathis on the sofa.

Sergeant Bennett retrieved consent to search forms, which he read aloud to Mathis and

Monks. They each signed the consent to search form.

       During the ensuing search, the officers found items including rubber tubing,

pseudoephedrine, lithium batteries, methamphetamine, a coffee grinder, Liquid Fire,

denatured alcohol, and glass jars. Monks volunteered that the items being recovered


                                             3
belonged to him and not to his mother. Monks additionally volunteered the information that

he was not manufacturing methamphetamine but would clean filters and baggies to extract

and concentrate methamphetamine residue for his personal use.2 At one point, Sergeant

Bennett “may have” asked Monks to identify an item. (Tr. 22.) Monks was taken to a police

vehicle for transport to jail. It was at that time that he was first read his Miranda rights.

After the warning, Monks “repeat[ed] the things that he’d been saying earlier on.” (Tr. 64.)

          The State charged Monks with Possession of Methamphetamine with the Intent to

Manufacture or Deliver,3 Possession of Precursors,4 and Manufacture of or Dealing in

Methamphetamine.5 The State also alleged him to be a habitual substance offender.6

          On March 16, 2012, Monks filed a motion to suppress evidence, arguing that the

apartment entry was illegal, and that all the evidence obtained from the entry, including any

testimony of his incriminating statements to officers, should be suppressed. On July 2, 2012,

a hearing was conducted. On July 12, 2012, the trial court entered an order denying the

motion to suppress evidence.

          On August 8, 2012, Monks moved the trial court to certify its order for interlocutory

appeal, and the trial court granted the motion on August 23, 2012. We accepted jurisdiction,

2
  Chief Sprinkle explained that a person can extract residual methamphetamine from a coffee filter by soaking
it in denatured alcohol or ether and then using salt and Liquid Fire to create hydrochloride gas. A tube is
inserted into a plastic soda bottle and hydrochloride gas forms. As the gas bubbles, the solid particles fall to
the bottom. The process results in a “smoke off bottle.” (Tr. 65.)
3
    Ind. Code § 35-48-4-1.1(a)(2).
4
    Ind. Code § 35-48-4-14.5(e).
5
    Ind. Code § 35-48-4-1.1(a)(1).
6
    Ind. Code § 35-50-2-10.

                                                       4
and this appeal ensued.

                                        Discussion and Decision

          Monks brings this interlocutory appeal from the denial of a motion to suppress

evidence, contending that the entry into his apartment violated the Fourth Amendment to the

United States Constitution.7 In particular, he claims that the officers lacked a reasonable

belief that the subject of the warrant was present and no exigent circumstances existed to

support a warrantless entry.8 He also claims that, once they were inside, officers elicited

incriminating statements without first providing a Miranda warning.

                                           Entry into Apartment

          We review a trial court’s denial of a motion to suppress similarly to other sufficiency

issues. Litchfield v. State, 824 N.E.2d 356, 358 (Ind. 2005). We determine whether

substantial evidence of probative value exists to support the trial court’s ruling. Id. We

review de novo a trial court’s ruling on the constitutionality of a search or seizure, but we

give deference to a trial court’s determination of the facts, which will not be overturned

unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008). Thus, we do

not reweigh the evidence, but consider conflicting evidence most favorably to the trial court’s

ruling. Id. However, in reviewing a denial of a motion to suppress, we must also consider

uncontested evidence that is favorable to the defendant. Jackson v. State, 785 N.E.2d 615,

7
    He does not develop a separate argument under Article 1, Section 11 of the Indiana Constitution.
8
 The existence of exigent circumstances is among the exceptions to the warrant requirement. Holder v. State,
847 N.E.2d 930, 936 (Ind. 2006). A warrant is unnecessary when the “‘exigencies of the situation make the
needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.’” Id. at 936–37 (quoting Mincey v. Arizona, 437 U.S. 385, 393–94 (1978)) (internal quotation
marks omitted).

                                                       5
618 (Ind. Ct. App. 2003), trans. denied. We will affirm the trial court’s ruling if it is

sustainable on any legal grounds that are apparent in the record. Richardson v. State, 848

N.E.2d 1097, 1101 (Ind. Ct. App. 2006), trans. denied.

       The Fourth Amendment to the United States Constitution states, in relevant part, that

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. This

federal right to be free of unreasonable searches and seizures applies to the states through the

Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650 (1961). The fundamental purpose

of the Fourth Amendment is to protect the legitimate expectations of privacy that citizens

possess in their persons, their homes, and their belongings. Taylor v. State, 842 N.E.2d 327,

330 (Ind. 2006) (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). The principal protection

against unnecessary intrusions into private dwellings is the warrant requirement imposed by

the Fourth Amendment. Alspach v. State, 755 N.E.2d 209, 212 (Ind. Ct. App. 2001), trans.

denied.

       Here, the officers were armed with a warrant for the arrest of Duke. “An arrest

warrant founded on probable cause gives the police ‘limited authority to enter a dwelling in

which the suspect lives when there is reason to believe the suspect is within.”’ Duran v.

State, 930 N.E.2d 10, 15 (Ind. 2010) (quoting Payton v. New York, 445 U.S. 573, 603

(1980)). The belief is judged on the information available to the officers at the time of their

entry and need not be proven correct in hindsight. Id. As a general proposition, “reason to

believe” involves something less than probable cause. Id. However, entry into a home to


                                               6
execute an arrest warrant, in the absence of exigent circumstances, and based on “reasonable

belief” may require more than the “reasonable suspicion” of an investigative stop. Id. at 16.

       Given the circumstances presented in Duran, the Court declined to “further explore

the potential differences in the quality of information available required to meet probable

cause, reasonable belief, and reasonable suspicion” but, for purposes of the opinion, adopted

the terminology of the majority of courts and used “reasonable belief” to refer to the quality

of information required to enter a home to execute an arrest warrant. Id. As for the

substance of what is to be reasonably believed, the Court noted that most jurisdictions require

that the police (1) have a reasonable belief that the dwelling is the residence of the subject of

the warrant, and (2) that the subject is present at the time the officers attempt to enter on

authority of the warrant. Id.

       Monks claims that in this instance the officers lacked a reasonable belief that Duke

was present in the apartment because an officer had driven past on several occasions in the

week preceding the entry but had not seen Duke’s vehicle. However, the evidence most

favorable to the trial court’s ruling indicates that the officers proceeded to the address listed

on the warrant for Duke and heard movement inside. Receiving no response to knocks, the

officers contacted the building maintenance manager. The maintenance manager was able to

verify that the apartment in question was occupied by Duke; he also reported having heard

movement in the apartment as the officers knocked and requested entry. From these

circumstances, a law enforcement officer could form the reasonable belief that Duke was

inside the apartment.


                                               7
       The officers had a warrant for the arrest of Duke at a location that proved to be her

residence; entering the apartment to effect that arrest upon reasonable belief that she was

inside did not constitute a violation of the Fourth Amendment. We cannot conclude that the

trial court erred in denying Monks’s motion to suppress evidence in this respect.

                                   Pre-Miranda Statements

       Monks was first read his Miranda rights when he was taken in the police vehicle for

transport to jail. He claims that pre-Miranda statements were elicited in violation of his Fifth

Amendment right against self-incrimination.

       Miranda warnings must be given to a person in police custody before interrogation;

however, officers are not required to give Miranda warnings unless the defendant is both in

custody and subject to interrogation. Campos, 885 N.E.2d at 602.

       Monks was not being questioned by an officer when he spontaneously claimed

ownership of the items in the apartment and professed to be harvesting methamphetamine for

personal use. Apart from this volunteered information, Monks has not identified a question

to which he provided an incriminating response or to which he related the substance of the

allegedly incriminating response. Because Monks did not provide incriminating information

while undergoing custodial interrogation, there was no Miranda violation.

                                         Conclusion

       Police did not violate Monks’s Fourth Amendment rights by entering his apartment to

serve an arrest warrant. Monks was not subjected to custodial interrogation without Miranda

warnings, in violation of his Fifth Amendment right against self-incrimination. Thus, the


                                               8
trial court did not err in denying the motion to suppress evidence.

       Affirmed.

NAJAM, J., and BARNES, J., concur.




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