                                                                    FILED
                                                               Mar 30 2017, 6:55 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ivan A. Arnaez                                            Curtis T. Hill, Jr.
      Evansville, Indiana                                       Attorney General of Indiana

                                                                George P. Sherman
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Luke M. Warren,                                           March 30, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                87A01-1606-CR-1399
              v.                                                Appeal from the Warrick Superior
                                                                Court
      State of Indiana,                                         The Honorable Robert R.
      Appellee-Plaintiff                                        Aylsworth, Judge
                                                                Trial Court Cause No.
                                                                87D02-1312-FB-442



      Altice, Judge.


                                                Case Summary


[1]   Following a jury trial, Luke M. Warren was convicted of class B felony dealing

      in methamphetamine and class D felony possession of chemical reagents or



      Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017             Page 1 of 13
      precursors with the intent to manufacture a controlled substance. Warren raises

      two issues on appeal:


              1. Did the trial court admit evidence against Warren that was
                 obtained in violation of his rights under the Fourth
                 Amendment to the United States Constitution?


              2. Was Warren denied the effective assistance of counsel
                 guaranteed by the Sixth Amendment to the United States
                 Constitution because his lawyer also represented Warren’s
                 codefendant?


[2]   We affirm.


                                        Facts & Procedural History


[3]   On December 18, 2013, Indiana State Trooper Matthew Lockridge and

      Warrick County Sheriff’s Deputy Jarrett Busing went to Warren’s mobile home

      as the result of a tip regarding the manufacturing of methamphetamine at that

      location. Deputy Busing was familiar with Warren and had been to his home

      on prior occasions.


[4]   They arrived at 9:06 p.m. and parked halfway down Warren’s long driveway.

      The rest of the driveway and the surrounding area was extremely muddy, with

      wooden pallets leading in different directions to approach the residence. There

      were three doors to the home – the east/front door, the north door leading to

      the driveway where a truck was parked five or six steps away, and the west door

      in the back, which was a glass door with a screen. There was an outside light

      on in the back.
      Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 2 of 13
[5]   As the officers approached the home, they both detected a chemical odor that

      they knew through their training and experience to be commonly associated

      with the manufacturing of methamphetamine. Deputy Busing identified it as

      the smell of ether, and Trooper Lockridge indicated that it was a chemical smell

      that he had smelled before at other methamphetamine labs.


[6]   Deputy Busing approached the front door and knocked and announced his

      presence loudly while Trooper Lockridge stood watch on the north side of the

      home near the truck. No one answered the front door, so Deputy Busing

      moved to the two other doors and continued to knock and yell loudly. He also

      knocked on windows. In the meantime, Trooper Lockridge felt the hood of the

      truck and looked to see if anyone was inside the truck. At the same time, he

      observed a burn pile next to the truck that had stripped batteries and a

      pseudoephedrine box on top of the pile in plain sight.


[7]   After numerous failed attempts to reach someone inside, the officers drove their

      vehicles back up to the roadway and out of view of Warren’s home. As they

      discussed their next course of action and contacted other officers, Warren’s

      mother, Diana, arrived on the scene around 10:00 p.m. Ostensibly there to

      check the mail, Diana asked the officers why they were there and whether

      Warren was in trouble. Deputy Busing indicated that they were investigating

      and that if she went down to the residence he would follow. Diana decided to

      leave.




      Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 3 of 13
[8]    Believing that Diana had come at the request of her son, the officers walked

       back down to the residence. They observed that the outside light had been

       turned off. Additionally, Deputy Busing noted that it looked as if the back door

       had been opened. Deputy Busing knocked at that door. Shortly thereafter,

       Warren and his live-in girlfriend, Melody Corsentino, walked around from the

       other side of the mobile home and spoke with him. Deputy Busing explained

       why they were there and noted the chemical odor and the items observed in the

       burn pile. Warren responded that he had a problem with his neighbors

       throwing their “meth trash” on his property. Trial Transcript at 44.


[9]    Deputy Busing asked Warren for consent to search the mobile home, but

       Warren indicated that his mother owned the property and her consent would be

       required. At Trooper Lockridge’s request, Warren called Diana, and she came

       to the scene. Thereafter, around 11:00 p.m., both Diana and Warren signed

       consents to search the home.


[10]   After officers located a few items related to methamphetamine use and

       manufacturing, Warren began questioning the consent that he had signed. At

       that point, the officers stopped the search, secured the residence, and applied for

       a search warrant. The search warrant was obtained in the early morning hours,

       and officers resumed the search. Throughout the home, officers found a

       plethora of items used in the manufacturing of methamphetamine, as well as

       methamphetamine residue and paraphernalia.




       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 4 of 13
[11]   On December 20, 2013, the State charged Warren with class B felony dealing in

       methamphetamine (Count I) and class D felony possession of chemical reagents

       or precursors with the intent to manufacture a controlled substance (Count II).

       The State also alleged that Warren was a habitual substance offender (Count

       III).


[12]   Warren filed a motion to suppress on September 9, 2014, arguing that his

       consent to search was not voluntarily given. Deputy Busing and Trooper

       Lockridge testified at the suppression hearing. Defense counsel argued that

       what started as a consensual encounter – the knock and talk – transformed into

       a seizure when the officers continued to knock and yell and not leave the

       property when no one answered. The trial court took the matter under

       advisement and then denied the motion on October 5, 2014.


[13]   Warren’s jury trial concluded on March 2, 2016, with the jury finding him

       guilty as charged on Counts I and II. Warren then stipulated that he had two

       prior substance abuse convictions, and the trial court determined that he was a

       habitual substance offender. On April 22, 2016, the trial court vacated the

       judgment of conviction on Count II and sentenced Warren to a total of seven

       years in prison on Counts I and III.


[14]   On May 20, 2016, Warren filed a motion to correct error arguing that his right

       to counsel was violated when his privately-retained trial counsel represented

       both Warren and his codefendant, Corsentino, in separate trials. The trial court

       denied the motion on June 7, 2016. Warren now appeals.


       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 5 of 13
                                            Discussion & Decision


                                            1. Fourth Amendment


[15]   Warren argues that evidence was admitted at trial in violation of his rights

       under the Fourth Amendment. He acknowledges that the officers had a right to

       perform a knock and talk at his front door. He contends, however, that when

       he did not answer the door, the officers were required to leave the property.

       According to Warren, Deputy Busing’s continued knocking on doors and

       windows and yelling transformed what began as an attempt to engage in a

       consensual encounter into an unconstitutional seizure invalidating Warren’s

       subsequent consent to search.


[16]   Subject to certain recognized exceptions, the Fourth Amendment prohibits

       warrantless searches and seizures inside a home and its curtilage (i.e., the area

       immediately surrounding and associated with the home). J.K. v. State, 8 N.E.3d

       222, 229 (Ind. Ct. App. 2014). No unreasonable search occurs, however, when

       police enter areas of curtilage impliedly open to use by the public to conduct

       legitimate business. Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). This

       includes knock and talks where police use normal routes of ingress and egress to

       make appropriate inquiries of the occupants. Id. Of course, the occupants have

       no obligation to open the door or to speak to police. Id. And when the knock is

       not answered, officers generally must leave and secure a warrant if they want to

       pursue the matter. Id. “Conduct that occurs on one’s curtilage that is beyond a




       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 6 of 13
       traditional ‘knock and talk’ is subject to Fourth Amendment protection.” J.K.,

       8 N.E.3d at 229.


[17]   In this case, Deputy Busing and Trooper Lockridge went to Warren’s home to

       speak with him after receiving a tip regarding the manufacturing of

       methamphetamine at that location. They drove down the driveway as far as

       they could and then walked the rest of the way to the residence. Deputy Busing

       went and knocked on the front door while Trooper Lockridge waited in the

       driveway near the residence and truck. The officers’ actions at this point, as

       Warren agrees, did not violate the Fourth Amendment. From this vantage

       point, both officers smelled a chemical odor they associated with the

       manufacturing of methamphetamine. Trooper Lockridge also observed in plain

       view items associated with such manufacturing on a burn pile next to the truck.

       Because of these observations, Deputy Busing knocked and yelled longer,

       louder, and in more locations than he would in a typical knock-and-talk

       situation. Warren would have us ignore the additional observations made by

       the officers while legally on his property. But that would not be reasonable.


[18]   In Holder v. State, 847 N.E.2d 930, 939 (Ind. 2006), our Supreme Court agreed

       with a line of federal cases concluding 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.” The Court recognized the volatile nature of methamphetamine labs

       and held that the warrantless entry was justified in that case by exigent

       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 7 of 13
       circumstances where the officers smelled ether and learned that there were

       occupants, including a young child, inside the home. Id. (“Because 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.”).


[19]   In the case at hand, Deputy Busing and Trooper Lockridge were not aware that

       the home was occupied during their initial entry onto the curtilage of Warren’s

       property. Thus, they could not – and indeed did not – make a warrantless entry

       into Warren’s home based on exigent circumstances. This is not to say,

       however, that they could not engage in a reasonable investigation to determine

       whether there were occupants inside the mobile home from which the chemical

       odor was emanating.


[20]   The touchstone of the Fourth Amendment is reasonableness. J.K., 8 N.E.3d at

       229. See also Terry v. Ohio, 392 U.S. 1, 19 (1968) (“the central inquiry under the

       Fourth Amendment [is] the reasonableness in all the circumstances of the

       particular governmental invasion of a citizen’s personal security”). And while

       suspicion of criminal activity is not an exception to the warrant requirement,

       circumstances may arise that would justify a decision by officers to stay on an

       individual’s curtilage. See J.K., 8 N.E.3d at 233.


[21]   Warren directs us to U.S. v. Jerez, 108 F.3d 684 (7th Cir. 1997) as an “instructive

       damning case”. Appellant’s Brief at 40. In that case, deputies conducted a knock


       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 8 of 13
       and talk at a quiet motel room late at night. When the occupants did not

       answer, the deputies continued to knock for several minutes and announce

       verbally that they were police and wanted the door opened. One of the deputies

       then began knocking on the window and shining a light through it. The

       Seventh Circuit concluded:


               Once the officers had been refused admittance, their continued
               efforts to rouse the occupants out of bed certainly prevented them
               from ignoring the continued requests and from maintaining the
               privacy and solitude of their dwelling. The deputies’ persistence,
               in the face of the refusal to admit, transformed what began as an
               attempt to engage in a consensual encounter into an investigatory
               stop.


       Id. at 691-692.


[22]   The Jerez court went on to explain that if an occupant refuses to answer the

       door and police take additional steps to obtain an answer, then the Fourth

       Amendment imposes some minimal level of objective justification to validate

       the resulting seizure. See id. at 692. The Seventh Circuit indicated that because

       the deputies’ actions, when considered in their totality, amounted to an

       investigatory stop, the deputies needed reasonable suspicion that criminal

       activity was afoot to go beyond the traditional knock and talk. Id. at 693.

       Because the Seventh Circuit found reasonable suspicion lacking, it held that the

       defendant’s consent to search obtained almost immediately following the illegal

       seizure was invalid. Id. at 693-95.




       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 9 of 13
[23]   Unlike in Jerez, Deputy Busing and Trooper Lockridge had reasonable

       suspicion to broaden their investigation once they smelled the chemical odor,

       known to be associated with the manufacturing of methamphetamine, and

       observed precursors on the burn pile. At a minimum, given the volatile nature

       of such an environment, they were permitted to intensify their knocking and

       announcing to determine whether there were occupants at risk inside the home.

       Cf. Hardister, 849 N.E.2d at 570-71 (although officers conducting a knock and

       talk following an anonymous tip could not make a warrantless entry into the

       home when they observed the occupants fleeing toward the back of the

       residence in a high crime area, the officers had reasonable suspicion to pursue

       the fleeing individuals by entering the rear curtilage of the residence to make a

       Terry stop1).


[24]   Viewed in their totality, the officers’ actions complied with the Fourth

       Amendment standard of reasonableness and constituted a reasonable response

       to the suspicion created by the odor regarding a possible danger inside the

       home. Thus, Warren’s subsequent consent to search was not rendered invalid




       1
         “A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see
       identification and inquiry necessary to confirm or dispel the officer’s suspicions.” Id. at 570. In Hardister, the
       Court acknowledged that this was not a typical Terry case involving a seizure in a public place. Id. at 571.
       The Court, however, rejected defendant’s argument that police may never invade the curtilage of a residence
       without probable cause and a warrant or exigent circumstances. The Court explained, “[t]he mere fact that
       officers enter curtilage to conduct an otherwise lawful Terry stop does not ipso facto render the physical
       invasion of the curtilage an unlawful search.” Id.

       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017                           Page 10 of 13
       by the officers’ preceding actions, and the extensive evidence found inside the

       home was properly admitted at trial.


                                             2. Sixth Amendment


[25]   Warren argues that his Sixth Amendment right to counsel was denied when his

       trial attorney also represented Corsentino, his codefendant, in a separate trial,

       which took place after Warren’s trial. He asserts that at no time did counsel or

       the trial court explain to him the ramifications of dual representation or seek an

       express waiver of any possible conflicts of interest. Further, Warren notes that

       counsel did not call Corsentino as a witness at his trial.


[26]   Warren acknowledges that he did not object at trial to the dual representation,

       and he does not argue that the trial court knew or should have reasonably

       known that a particular conflict existed. Thus, the trial court had no obligation

       to sua sponte inquire into the propriety of such representation. See Cuyler v.

       Sullivan, 446 U.S. 335, 346 (1980) (“Absent special circumstances, therefore,

       trial courts may assume either that multiple representation entails no conflict or

       that the lawyer and his clients knowingly accept such risk of conflict as may

       exist.”).


[27]   It is well established that, absent a timely objection, dual representation will not

       violate the Sixth Amendment unless it gives rise to an actual conflict of interest.

       Id. at 348. In other words, a reviewing court cannot presume that a possibility

       for conflict resulted in ineffective assistance of counsel. Rather, “a defendant

       who raised no objection at trial must demonstrate that an actual conflict of

       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 11 of 13
       interest adversely affected his lawyer’s performance.” Id. See also Williams v.

       State, 529 N.E.2d 1313, 1315 (Ind. Ct. App. 1988).


[28]   Aside from bald assertions, Warren has presented no evidence from the record

       establishing that an actual conflict of interest existed that adversely affected

       counsel’s performance. As the Supreme Court observed in Cuyler, the provision

       of separate trials significantly reduces the potential for a divergence in the

       interests of codefendants. Id. at 347. Moreover, there is no evidence in the

       record that Warren and Corsentino advanced different or conflicting defense

       theories2 or that they had divergent interests. See Williams, 529 N.E.2d at 1315

       (“Conflict of interest occurs whenever one defendant stands to gain significantly

       by counsel advancing plausible arguments that are damaging to a co-defendant

       whom counsel is also representing.”).


[29]   Warren contends that the trials were separated due to a Bruton problem. See

       Bruton v. United States, 391 U.S. 123, 124-26 (1968) (in a joint trial, admission of

       one defendant’s confession that implicates another defendant is a violation of

       the second defendant’s Sixth Amendment right to confront witnesses and, thus,

       the trials must be severed). In light of the alleged Bruton problem, Warren

       claims that counsel’s performance was per se impaired even though the trials




       2
        Contrary to his assertion on appeal, the defense advanced at trial was not that only Corsentino
       manufactured methamphetamine in the home. Rather, defense counsel argued that the State had not
       presented adequate evidence that methamphetamine had been manufactured in the home. Counsel
       emphasized during closing argument that, among other things, no active lab was found, several key
       components were not found, the burn pile was not hot when the officers arrived, and no significant quantity
       of methamphetamine was discovered in the home.

       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017                      Page 12 of 13
       were severed. Warren, however, presents no evidence regarding the Bruton

       problem. We do not know who gave a statement or what that statement

       contained. See Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000) (“a co-

       defendant’s statements present a Bruton problem only if they ‘facially

       incriminate’ another defendant”).


[30]   Finally, Warren asserts, again with no evidentiary support, that his counsel

       refused to call Corsentino as a witness because counsel also represented her. As

       an initial matter, Warren does not present any evidence that counsel still

       represented Corsentino at the time of Warren’s trial. Further, counsel may

       have had strategic reasons for not calling her as a witness in his trial.


[31]   Because Warren chose to raise this issue in a motion to correct error and on

       direct appeal rather than on post-conviction review, facts in support of his claim

       are woefully lacking. We refuse to indulge in speculation and assumptions

       regarding pivotal facts. Thus, we conclude that Warren has failed to establish

       an actual conflict of interest adversely affected his trial counsel’s performance.


[32]   Judgment affirmed.


       Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 87A01-1606-CR-1399 | March 30, 2017   Page 13 of 13
