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Luke M. Warren v. State of Indiana
Case Number: 87A01-1606-CR-1399
Judge: Robert R. Altice Jr.
Court: COURT OF APPEALS OF INDIANA
George P. Sherman Deputy Attorney General
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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.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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
 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.
 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.
 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.
Discussion & Decision
1. Fourth Amendment
 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.
 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
traditional ‘knock and talk’ is subject to Fourth Amendment protection.” J.K.,
8 N.E.3d at 229.
 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.
 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
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
 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.
 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.
 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
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.
 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.
 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
 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.
by the officers’ preceding actions, and the extensive evidence found inside the
home was properly admitted at trial.
2. Sixth Amendment
 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.
 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
 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
interest adversely affected his lawyer’s performance.” Id. See also Williams v.
State, 529 N.E.2d 1313, 1315 (Ind. Ct. App. 1988).
 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.”).
 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.
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”).
 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.