MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any
court except for the purpose of establishing                           Aug 29 2017, 8:28 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Melissa J. Haley                                         Curtis T. Hill, Jr.
Boonville, Indiana                                       Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Heuring,                                         August 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         87A04-1701-CR-74
        v.                                               Appeal from the Warrick Superior
                                                         Court
State of Indiana,                                        The Honorable J. Zach Winsett,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         87D01-1505-F4-197



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017           Page 1 of 7
                                          Case Summary
[1]   Jeffery Heuring appeals his convictions for dealing in methamphetamine,

      possession of methamphetamine, maintaining a common nuisance, and

      possession of paraphernalia. He argues that the trial court erred by allowing the

      State to use evidence obtained during two searches, which he contends were

      conducted in violation of the Fourth Amendment to the U.S. Constitution and

      Article 1, Section 11 of the Indiana Constitution. Finding no error, we affirm.



                            Facts and Procedural History
[2]   In May 2015, Heuring was living in the basement of his parents’ house in

      Chandler. Next to the house was a pole barn. On May 27, John Williams,

      who said he had been involved in a love triangle with Heuring (and Williams’s

      wife), told Officer Cole Georges of the Chandler Police Department and

      Detectives Matt Young and Tim Pierce of the Warrick County Sheriff’s Office

      that he had seen a methamphetamine lab and precursors in the barn three

      weeks earlier. Williams then agreed to accompany the three of them to the

      property. When they pulled into the driveway, Heuring was standing in one of

      the barn’s doorways. Williams said, “[T]here’s really only one reason why he’s

      usually in that barn.” Tr. Vol. II p. 130.


[3]   As the men approached each other, Detectives Young and Pierce both smelled

      a chemical odor that they associated with manufacturing methamphetamine.

      Officer Georges then said that he saw smoke coming from behind the barn.


      Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017   Page 2 of 7
      Detective Young ran around the barn, saw a burn barrel, and looked inside,

      where he saw what he believed to be a meth lab on fire. Detective Young

      reported what he had seen to Detective Pierce, who grabbed a fire extinguisher

      and put out the fire. When Detective Young told Heuring that a meth lab was

      burning in the barrel, Heuring nodded affirmatively.


[4]   Based on Williams’s tip, the observations at the property, and Heuring’s

      acknowledgement that there was a meth lab in the burn barrel, Detective Pierce

      applied for and received a search warrant. Searches of the barn, the burn barrel,

      the basement of the house, and Heuring’s car turned up methamphetamine

      precursors, manufacturing supplies, paraphernalia, and methamphetamine

      residue.


[5]   The State charged Heuring with dealing in methamphetamine, possession of

      methamphetamine, maintaining a common nuisance, and possession of

      paraphernalia.1 Heuring filed a motion to suppress, arguing that Detective

      Young violated the Fourth Amendment to the U.S. Constitution and Article 1,

      Section 11 of the Indiana Constitution when he went behind the barn and

      looked into the burn barrel without a warrant authorizing him to do so and that

      all evidence obtained by virtue of that violation—including the evidence seized




      1
        The State also filed four other charges that did not result in convictions: possession of anhydrous ammonia
      or ammonia solution with the intent to manufacture methamphetamine or amphetamine (found not guilty by
      jury); possession of two or more chemical reagents or precursors with the intent to manufacture a controlled
      substance (dismissed by the State); obstruction of justice (directed verdict); and possession of marijuana
      (dismissed by the State).

      Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017              Page 3 of 7
      pursuant to the subsequent warrant—should be excluded. The trial court

      denied Heuring’s motion, and the case proceeded to a jury trial. Heuring again

      objected to the State’s use of the evidence from the searches, and the trial court

      again disagreed. The jury found Heuring guilty on the charges listed above,

      and the trial court sentenced him to eight years.


[6]   Heuring now appeals.



                                 Discussion and Decision
[7]   On appeal, Heuring renews his argument that the searches violated the Fourth

      Amendment and Article 1, Section 11 of the Indiana Constitution and asserts

      that the trial court erred by allowing the State to use the evidence obtained from

      the searches. The constitutionality of a search is a question of law that we

      review de novo. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). The trial

      court did not explain its rationale for rejecting Heuring’s argument, but we will

      affirm a trial court’s decision to admit evidence if it is sustainable on any basis

      in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied.


                                     I. Fourth Amendment
[8]   Heuring’s primary contention on appeal is that Detective Young violated the

      Fourth Amendment when he ran behind the barn and looked in the burn barrel.

      The Fourth Amendment provides:

              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable searches and seizures,

      Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017   Page 4 of 7
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


      It is undisputed that Detective Young did not have a warrant authorizing him

      to go behind the barn or to look into the barrel. However, the State argues that

      the warrantless search was justified by an exigent circumstance, namely, “a

      serious safety threat.” Appellee’s Br. p. 13. We agree.2


[9]   The State directs us to our Supreme Court’s decision in Holder v. State, 847

      N.E.2d 930 (Ind. 2006). There, the Court held that law enforcement did not

      violate the defendant’s Fourth Amendment rights when they walked up to his

      house and sniffed outside a cracked window in an effort to determine the source

      of the smell of ether, which is commonly used in the manufacture of

      methamphetamine. The Court noted that one of “the exigencies that may

      properly excuse the warrant requirement” is a “threat[] to the lives and safety of

      officers and others” and concluded that the strong odor of ether, “a known

      explosive and flammable chemical,” suggests the existence of such a threat. Id.

      at 937.




      2
        The State also argues that the warrantless search was permissible under the Fourth Amendment because of
      the possibility that evidence was being destroyed and, alternatively, because the burn barrel was outside the
      “curtilage” of the house. Given our agreement with the State on the safety-threat issue, we need not address
      these arguments.

      Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017               Page 5 of 7
[10]   We see little daylight between the Holder officer’s act of sniffing next to the

       defendant’s house to determine the source of the smell of ether and Detective

       Young’s act of going behind Heuring’s barn to determine the source of the

       smoke. Detective Young, who had been told by Williams that Heuring had

       been manufacturing methamphetamine on the property and who had

       personally smelled a chemical odor associated with such manufacturing,

       testified that such activity involves “highly flammable items” and could lead to

       “explosions” and that meth labs are “dangerous” because they can “burn,”

       “blow up,” and “knock houses off foundations.” Tr. Vol. II pp. 39, 41, 127.

       Far from being an unreasonable intrusion on Heuring’s privacy, Detective

       Young’s brief trip to the back side of the unenclosed barn to search for the

       source of the smoke, followed immediately by Detective Pierce’s

       extinguishment of the fire, strikes us as sound police practice. Heuring’s Fourth

       Amendment rights were not violated.


                                     II. Article 1, Section 11
[11]   Heuring also asserts that even if the evidence was admissible under the Fourth

       Amendment, it should have been excluded under Article 1, Section 11 of the

       Indiana Constitution. The language of that provision is virtually identical to

       that of the Fourth Amendment, but claims under the Indiana Constitution are

       analyzed differently. “The legality of a governmental search under the Indiana

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

       under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359

       (Ind. 2005). The reasonableness of a search turns on a balance of (1) the degree

       Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017   Page 6 of 7
       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.


[12]   Heuring’s one-paragraph argument in this regard has not left us convinced that

       Detective Young acted unreasonably when he went behind the barn and looked

       in the burn barrel. Given Williams’s tip, the chemical odor near the barn, and

       the smoke coming from behind the barn, the degree of suspicion of illegal

       activity was high. The degree of intrusion was low, as Detective Young did not

       have to go into an enclosed area to view the burn barrel. And in light of the

       known danger of meth manufacturing, the need was high to immediately

       investigate the source of the odor and the smoke. There was no violation of

       Article 1, Section 11.


[13]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1701-CR-74 | August 29, 2017   Page 7 of 7
