FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

HUGH N. TAYLOR                               GREGORY F. ZOELLER
Auburn, Indiana                              Attorney General of Indiana

                                             GEORGE P. SHERMAN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                                                                       Apr 18 2013, 9:24 am
                            IN THE
                  COURT OF APPEALS OF INDIANA

CASEY WALKER,                                )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 76A04-1204-CR-207
                                             )
STATE OF INDIANA                             )
                                             )
     Appellee-Plaintiff.                     )



                  APPEAL FROM THE STEUBEN SUPERIOR COURT
                        The Honorable William C. Fee, Judge
                          Cause No. 76D01-1111-FA-1105



                                   April 18, 2013

                            OPINION – FOR PUBLICATION
BAKER, Judge

          In this case, appellant-defendant Casey Walker was convicted of class A felony

Manufacturing Methamphetamine1 and sentenced to thirty years of incarceration.

Evidence presented at Walker’s trial included evidence obtained from a warrantless

search of a residence that police officers conducted after obtaining the consent of

Walker’s wife, an occupant of the residence, and Walker’s mother, the owner and an

occupant of the residence.

          On appeal, Walker argues that the State failed to establish an exception to the

warrant requirement because his mother is incapable of giving consent in that she suffers

from Alzheimer’s disease. Walker requests that the evidence seized from the search be

suppressed, and consequently, his conviction reversed.

          We conclude that Walker has failed to establish that his mother was incompetent

to give consent to search the residence. Moreover, there was undisputed testimony at

trial that Walker’s wife gave verbal consent to search the residence, and Walker points to

no evidence that he explicitly told the police that they could not enter his residence.

Accordingly, we find that the police had consent to search the residence, and the trial

court did not err by admitting the evidence. Thus, we affirm the judgment of the trial

court.




1
    Ind. Code § 35-48-4-1.1.
                                             2
                                                FACTS2

        In 2011, Walker and his wife, Jennifer, lived in Steuben County with Walker’s

eighty-seven-year-old mother, Mary Walker. Mary owned the residence and, according

to Walker’s testimony, had been diagnosed with Alzheimer’s disease. Walker acted as

his mother’s power of attorney, and his sister, Susan Baumgartner, served as alternate

power of attorney.3

        On November 10, 2011, Jennifer saw Walker putting gray strips into a plastic

bottle and noticed a “chemical odor.” Tr. p. 121. Because Jennifer had “a hunch” that

Walker was making methamphetamine, she drove herself and Mary to her sister’s house,

which was “[j]ust up the road.” Id. at 121-23. Once they arrived, Jennifer called the

police and reported that she thought Walker was manufacturing methamphetamine.

        Detective Sergeant Michael Meeks of the Steuben County Sheriff’s Department

received a call shortly after noon on November 10th about a complaint of possible “meth

making activity at [the Walker] residence.” Tr. p. 131. Detective Meeks and two patrol

deputies met Jennifer at a parking lot at Fairview Missionary Church, which is adjacent



2
  We heard oral argument on April 1, 2013, at the Indiana University Maurer School of Law. We would
like to thank counsel for their presentations and the students who attended the argument for their presence
and respectful manner. Additionally, we want to express our appreciation to the administration, faculty,
technology support, and staff of the Maurer School of Law for their warm hospitality and assistance.
3
  The documents granting power of attorney to Walker and alternate power of attorney to Baumgartner
were not included in the record on appeal. Instead, we have only the colloquy between the trial court and
the defense counsel that it would be “[e]asy enough for me to check the court records [to] see if there is a
guardianship” or a power of attorney. Tr. p. 104.
                                                     3
to the Walker residence. The information that Detective Meeks received from Jennifer

“indicated that the lab was active and so our, my main concern was the hazardous

materials and the possible fire hazard that’s commonly associated with the one pot

methamphetamine.”4 Id. at 132.

        Detective Meeks obtained verbal consent from Jennifer and Mary to enter the

house and try to make contact with Walker. Additionally, Detective Meeks witnessed

Mary and Baumgartner sign a consent form granting the police officers permission to

enter the house.

        After obtaining these consents, Detective Meeks met with Sergeant Nott and

Deputy Reardon, and they entered the residence through an open overhead garage door.

After entering the garage, they “knocked on the entry door . . . along the east wall of the

garage. The main door was open but the storm door was closed.” Tr. p. 138. Detective

Meeks stated that they knocked several times and that Sergeant Nott called out Walker’s

name. After receiving no response, the three officers stepped inside based on Jennifer’s

and Mary’s consent.

        At that point, Walker emerged from a bathroom that was adjacent to the door

where the officers had just entered. Walker was immediately “placed into protective

custody by being handcuffed behind the back,” while the officers conducted a protective

sweep of the residence. Tr. p. 139-40. Detective Meeks briefly explained to Walker why

4
  Detective Meeks explained to the jury that the “one pot” method of making methamphetamine involves
filling a sports or two-liter bottle with ammonium sulfate or ammonium nitrate, adding any organic
solvent and either pseudoephedrine or ephedrine, and then adding lithium strips extracted from batteries,
which begins the chemical reaction. Tr. p. 135-36.
                                                   4
the officers were there and what they were doing.              Walker denied making

methamphetamine.

      During the protective sweep, Detective Meeks noticed a chemical odor in the

southwest bedroom that he associated with the manufacture of methamphetamine.

Detective Meeks also noticed an open window with an exhaust fan in it and knew from

his experience and training that this was a common practice during the manufacture of

methamphetamine to rid a room of the chemical odor. Additionally, Detective Meeks

observed coffee filters inside a gallon-size plastic storage bag, which are commonly used

to make methamphetamine using the “one pot” method. Appellant’s App. p. 132.

      Based on this information and Detective Meeks’s training and experience, he

believed that he had probable cause that methamphetamine was being manufactured in

the residence. Detective Meeks sought and obtained a search warrant, and during the

execution of the search warrant, the police found:

    Two plastic bottles containing a white granular substance, one of which also
     contained a clear liquid
    Two bottles containing drain opener
    Blue plastic funnel with white residue
    Coffee filters
    Plastic zip lock bags
    One pair of pliers
    One pair of side cutters
    Two canisters of Morton Salt – one empty and one partially full
    One opened instant ice compress
    Empty PSE blister packs
    One empty 32 ounce bottle of camp fuel.

Appellant’s App. p. 120.

                                            5
         Jerry A. Hetrick, a forensic scientist for the Indiana State Police Laboratory,

conducted testing on the various items taken from Walker’s home.            The result of

Hetrick’s testing indicated that the plastic bottle with the clear liquid contained

methamphetamine and either ephedrine or pseudoephedrine.

         On November 14, 2011, the State charged Walker with class A felony

manufacturing methamphetamine. Walker’s trial was scheduled to begin on March 15,

2012, and on that day, Walker filed various motions, including two motions to suppress

evidence – one pursuant to the search warrant and the other pursuant to Jennifer’s and

Mary’s consent.

         Walker challenged the validity of the search on numerous grounds, including that

the search warrant violated the Fourth Amendment to the United States Constitution

because it was “overly broad.” Appellant’s App. p. 74. Additionally, Walker claimed

that the search warrant affidavit failed to establish probable cause because although it

alleged that Jennifer had given statements “against her penal interests,” there was no

indication that she was involved in any criminal activity. Id. Walker also alleged that the

police failed to properly knock and announce their presence and that “[u]nder the totality

of the circumstances, the search of [Walker’s] home, pursuant to the search warrant was

unreasonable, and thus violated Article I, Section 11 of the Indiana Constitution.” Id. at

74-75.

         In Walker’s motion to suppress the evidence seized as the result of the search

pursuant to Jennifer’s consent, Walker claimed that the search violated the Fourth

                                             6
Amendment because his “wife’s consent to search was not validly given.” Appellant’s

App. p. 79. In the alternative, Walker alleged that the “police exceeded the scope of [his]

wife’s consent, thereby violating the Fourth Amendment.” Id. Finally, Walker argued

that “[c]onsidering the totality of the circumstances, the police officer’s search of [his]

home was unreasonable and, thus, violated Article I, Section 11 of the Indiana

Constitution.” Id. at 80.

       Walker’s jury trial commenced on March 15, 2012. After the jury had been sworn

but before the presentation of evidence, the trial court heard evidence regarding Walker’s

various motions, including his motion to suppress the evidence “that was obtained during

the first warrant less [sic] entry into the premises.” Tr. p. 99. Walker claimed that the

police officers had failed to obtain valid consent. Id.

       The State offered State’s Exhibit 24, which was the consent form to search that

Mary and Baumgartner had signed. Id. at 100; State’s Ex. 24. The defense stipulated

that the consent form was signed in front of Detective Meeks, and State’s Exhibit 24 was

admitted. Tr. p. 100.

       Walker was then permitted to testify that he believed that the signatures were

invalid because his mother suffered from Alzheimer’s disease and was incompetent to

consent. Tr. p. 101. Further, Walker testified that Baumgartner was legally incompetent

to consent because Walker was the primary power of attorney and that she did not have

power of attorney unless Walker was unable to perform his functions. Id. at 102.



                                              7
      While Walker was under cross-examination and redirect examination, there was

confusion regarding whether Walker had a power of attorney or a guardianship over

Mary. Walker’s counsel offered to check the court records, and the trial court granted a

“quick continuance.” Tr. p. 104.

      The trial court then explained that “[p]ower of attorney means that you are

authorized to make decisions for someone.        It does not divest that someone of the

authority to make decisions for themselves.” Id. By contrast, a guardianship divests a

person of their own decision-making authority and requires a determination, as a matter

of law, that the person is incompetent. Id. at 105. After determining that Walker

possessed a power of attorney and not a guardianship, his motions to suppress were

denied.

          The next day, the jury returned a guilty verdict to class A felony manufacturing

methamphetamine. On April 9, 2012, the trial court held a sentencing hearing during

which it sentenced Walker to thirty years of incarceration. Walker now appeals.

                              DISCUSSION AND DECISION

      Walker argues that the trial court erred by failing to grant his motion to suppress

the evidence. Walker contends that “the finding by the trial court that the search was

valid should be reversed and all evidence obtained pursuant to the illegal search

suppressed. This case should be reversed and remanded with instructions that the State

should be barred from further prosecution.” Appellant’s Br. p. 12.



                                             8
                      I. Procedural Posture and Standard of Review

       At the outset, it is noteworthy that Walker frames the issue as whether the trial

court erred by denying his motion to suppress. This Court has determined that unless a

defendant seeks an interlocutory appeal, “the issue is more appropriately framed as

whether the trial court abused its discretion by admitting evidence at trial.” Washington

v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).

       This is not merely a distinction without a difference insofar as the standard of

review is concerned. Regarding a denial of a motion to suppress, this Court does not

reweigh the evidence and considers conflicting evidence most favorable to the trial

court’s ruling. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). However, this

Court also considers the uncontested evidence favorable to the defendant. Id.

       By contrast, when reviewing the admissibility of evidence, because trial courts are

given such broad discretion, we will reverse only when a trial court abused its discretion.

Id. An abuse of discretion occurs when a decision is clearly against the logic and effect

of the facts and circumstances before the court. Id. Accordingly, unless the defendant

takes an interlocutory appeal, thereby permitting us to review a denial of a motion to

suppress, we may not consider the uncontested evidence favorable to the defendant. Id.

       Here, because Walker did not seek an interlocutory appeal of the trial court’s

denial of his motion to suppress, the issue is whether the trial court erred by admitting the

evidence resulting from the search of his residence. Consequently, we will review the



                                             9
admission of this evidence only for an abuse of discretion and will not consider the

uncontested evidence favorable to Walker.

                      II. Fourth Amendment – Search by Consent

      Proceeding to the merits, Walker argues that Mary was incompetent to consent to

the search of the residence and that Baumgartner was not authorized to consent because

she was Mary’s alternate power of attorney. The State counters that the police officers

obtained valid consent from both Mary and Jennifer before entering the Walker

residence.

      Under the Fourth Amendment, the warrantless entry of a person’s house is per se

unreasonable.   Georgia v. Randolph, 547 U.S. 103, 109 (2006).             However, one

“‘jealously and carefully drawn’” exception is when voluntary consent is given by an

individual possessing authority. Id. (quoting Jones v. United States, 357 U.S. 493, 499,

78 S. Ct. 1253, 1257 (1958)).

                            A. Mary’s Competency to Consent

      As stated above, the Detective Meeks obtained Mary’s written and verbal consent

to search the residence which she owned and in which she resided. Tr. p. 100, 138;

State’s Ex. 24. However, Walker argues that Mary was incompetent because she had

been diagnosed with Alzheimer’s disease and placed on medication approximately two

months before the search.

      Initially, we observe that it is a general principle of law that everyone is presumed

to be competent. See Bellmore v. State, 602 N.E.2d 111, 117 (Ind. Ct. App. 1992)

                                            10
(stating that “[a] witness is presumed to be competent[;] . . . [i]f evidence places the

competency of a witness in doubt, the trial court should order a psychiatric evaluation”);

Hays v. Harmon, 809 N.E.2d 460, 464 (Ind. Ct. App. 2004) (stating that “[e]very person

is presumed to be of sound mind to execute a will until the contrary is shown”).

         Here, at the time Mary consented to the search, there was no legal guardianship

over her. Tr. p. 110. Thus, Mary was not divested of the ability to make decisions for

herself. See Ind. Code § 29-3-1-6 (defining “Guardian” as “a fiduciary” appointed by “a

court to be a guardian or conservator responsible . . . for . . . an incapacitated person”);

Ind. Code § 29-3-1-7.5 (defining “Incapacitated person” as someone who “is unable” to

manage the individual’s property or provide self-care or both because of some

incapacity).

         Here, no doctor or any other expert specializing in neurological disorders testified

regarding Mary’s mental capacity. Indeed, it appears from the record that the only

evidence regarding the extent of Mary’s Alzheimer’s disease is Walker’s testimony that

she had been diagnosed with the disease and placed on medication two months prior to

giving consent. Tr. p. 103. Consequently, there is uncertainty regarding the extent to

which Mary’s condition had progressed. Under these facts and circumstances, we cannot

conclude that Walker rebutted the presumption that Mary was competent to consent to

the search of the residence that she owned and where she resided. Thus, this argument

fails.



                                              11
                             B. Jennifer’s Ability to Consent

       The State argues that not only did Mary have authority to consent to the search,

but that Jennifer also had authority to consent to the search. A third party who has

common authority over the property may give consent. Hill v. State, 825 N.E.2d 432,

436 (Ind. Ct. App. 2005).

       Common authority rests on the mutual use of the property by persons
       generally having joint access or control for most purposes, so that it is
       reasonable to recognize that any of the cohabitants has the right to permit
       the inspection in his or her own right and that the others have assumed the
       risk that one of their number might permit the common area to be searched.

Id.

       Here, at Walker’s trial, Jennifer testified that Walker is her husband. Tr. p. 119.

Jennifer further stated that on November 10, 2011, she was living with Walker and his

mother, Mary. Id. at 119-120. Jennifer explained that on November 10th, she saw

Walker “put something in, into a plastic bottle,” and smelled a chemical odor. Id. at 120-

21. Jennifer then packed up a few personal items and decided to leave the house with

Mary. Based on these facts, it was reasonable for the police officers to conclude that

Jennifer and Walker were husband and wife, living in the same house. Therefore, it was

reasonable for Detective Meeks to believe that Jennifer had the authority to consent to the

search.

       Moreover, we find the instant case distinguishable from Georgia v. Randolph, 547

U.S. 103 (2006). In Randolph, after a domestic dispute, the police obtained the wife’s

consent to search over the husband’s explicit objection. Id. at 107. The United States

                                            12
Supreme Court determined that a co-tenant “has no recognized authority in law or social

practice to prevail over a present and objecting co-tenant.” Id. at 114. Indeed, the

disputed consent, without more, “gives a police officer no better claim to reasonableness

in entering than the officer would have in the absence of any consent at all.” Id.

        Unlike in Randolph, there is no indication that Walker explicitly refused consent.

Thus, the trial court properly admitted the evidence discovered during the search, and we

affirm the decision of the trial court.5

        The judgment of the trial court is affirmed.

NAJAM, J., and RILEY, J., concur.




5
  Walker briefly cites to Article I, Section 11 of the Indiana Constitution to argue that the search of his
premises was unreasonable. However, Walker fails to develop an independent argument and analysis
regarding these facts; therefore, he has waived this claim. See Ackerman v. State, 774 N.E.2d 970, 978
n.10 (Ind. Ct. App. 2002) (stating that the failure to cite to any authority or to make a separate argument
specific to the state constitutional provision waives the issue on review).

                                                    13
