RULES TO SEARCH FOR METH LOOSENED

Appeals Court Backs Indiana Troopers

The The Indiana Court of Appeals issued a ruling yesterday in a Clark County
case that may make it easier for police, without a search warrant, to gather
evidence from places they believe might house methamphetamine labs. The
court ruled that the smell of ether from an apartment where a small child
was present was enough to justify searching the apartment without a warrant.

A statewide organization of defense attorneys said the ruling amounts
to a new exemption in meth cases to the constitutional prohibition
against unreasonable searches.

But the state prosecutors' council said the decision is simply one
that will reassure its members as they fight similar cases involving
meth, a highly addictive drug that can be made cheaply.

The 3-0 ruling overturned a ruling in which Clark Superior Court Judge
Cecile Blau threw out evidence of a meth lab found in a Henryville
apartment when police searched it on Feb. 22, 2004, without a warrant.
Clark County deputy prosecutor Jeremy Mull had charged Scott Crabb
with dealing in and possession of meth, and with neglect of a
2-year-old boy who was in the apartment at 1310 Mount Zion Road.

Mull said yesterday that those charges, which he dropped after Blau's
September 2004 ruling, "will be re-filed promptly."

Defense attorney William Dawkins said he would appeal yesterday's
ruling to the Indiana Supreme Court.

Indiana State Police went to Crabb's apartment after a neighbor called
them to complain of a strong chemical odor and suspected criminal
activity there. She said she was worried about the child.

When officers arrived at the apartment they noticed the smell of
ether, a common indicator of meth manufacturing. There was no answer
when police knocked on the door and rang the bell, but one officer
noticed movement at the front window, according to court documents.

The search The same officer, Trooper Robert Neal, spotted a cooler on
the front porch, opened it and looked inside. The cooler contained a
jar and hoses, items commonly used in meth manufacturing.

Trooper Barry Brown eventually "opened the window to the apartment,
cut the screen, and entered the apartment through the window. He
pointed his shotgun at the female occupant and her young son and told
them not to move," the appeals court said.

Brown then ordered the occupants, including Crabb, out of the
apartment. Neal and Mull decided that the danger posed by a meth lab
"did not allow for the time frame to obtain a search warrant,"
according to a report filed by Neal. Neal and Trooper Jack Smith then
searched the apartment and found other indications of meth activity. A
warrant was obtained only after the initial search. Ruling appealed
Blau, in throwing out the evidence, said "the issue is whether there
was sufficient probable cause that either a crime was being committed
or someone's life was in danger for the officer to look inside the
cooler . or to push the apartment curtain back, cut the screen and
step inside the room and unlock the door."

She concluded that there was not. "Based upon . the fact that one of
the officers saw the adult woman and the child inside the apartment in
no apparent danger, there was no evidence of a real danger to the
individuals inside the apartment or the adjacent tenants," Blau wrote.
"None of the actions of the officers on the scene indicated that they
thought there was any type of an emergency." The appeals court
disagreed. A two-judge majority of the three-judge panel concluded
that the smell of ether and the rustling of curtains, "combined with
credible evidence that a small child was on the premises," being
exposed to the risks of explosion or respiratory injury from meth
production, "caused the troopers to reasonably believe that a person
inside the apartment was in immediate need of aid," thereby justifying
the search without a warrant.

The majority stopped short of spelling out a broad exception for meth
searches. "We are not ready to draw a bright line which would allow
officers to enter a home without a warrant based solely on the smell
of ether," said the opinion by Chief Judge James Kirsch and Judge
Michael Barnes. Judge John Baker wrote in a concurring opinion that
"the smell of ether emanating from the apartment -- regardless of the
presence of the child -- was enough to justify the officers'
warrantless entry and subsequent search of the premises."

Court decision debated Dawkins, Crabb's attorney, said of the police,
"They went too far in this case." He said judge Blau "got it right."

Larry Landis, executive director of the Indiana Public Defender
Council, agreed. He said the court "is being a little intellectually
dishonest" by focusing on the protection of the child to create a de
facto exception for methamphetamine cases.

He noted that the people were removed from the apartment before it was
searched. Once they were removed, there could be no danger to justify
a search, he said.

"What they're doing is creating an exception for ether that wouldn't
apply to marijuana smoke," Landis said.

Becky McClure, assistant director of the Indiana Prosecuting Attorneys
Council, said the decision doesn't give prosecutors any latitude they
didn't previously have.

But she added that "prosecutors are going to be glad to have this to
rely on in cases where they have that smell and a person inside." At
the Indiana Criminal Justice Institute, which oversees the Governor's
Meth-free Indiana Coalition, executive director Heather Bolejack said
"the court struck an appropriate balance between public safety
concerns . and constitutional protections. I do not see this as a
slippery slope ruling."