NOT TO BE PUBLISHED

OPINION

MOORE, JUDGE.

Randall Tilford Miller appeals the Warren Circuit Court's order denying his RCr1 11.42 motion to vacate the judgment against him. After a careful review of the record, we affirm because Miller's ineffective assistance of counsel claim lacks merit.

I. FACTUAL AND PROCEDURAL BACKGROUND

During Miller's jury trial, testimony was introduced that an anonymous complaint had been made to the Kentucky State Police that there was a strong chemical odor coming from somewhere around the 1600 block of Carter Lane in Warren County. Kentucky State Trooper Brad Bowles attested that when he arrived in that vicinity approximately thirty minutes after the complaint was made, he smelled a combination of anhydrous ammonia and ether. He testified he could smell the strong chemical odor from the roadway, with his windows rolled up, and that the outbuilding he subsequently searched at 1663 Carter Lane, where the methamphetamine lab was found, was approximately fifty-six yards from the roadway. The outbuilding was approximately sixty-nine feet, or twenty-three yards, from the house at that address.

Trooper Bowles attested that the odor was "overwhelming," and it was obvious the smell was emanating from a roll-away garbage can on the property and from the outbuilding. He was joined at the property by his supervising officer, Sergeant Tommy Smith. The lights inside the residence were on, which caused them to believe someone was home. Therefore, they knocked on the front door of the residence. There was no answer, but there was a note taped to the front door, which stated: "Come to the side door," and it was signed "Randall and Anita." The officers went to the side door and knocked, but still there was no answer.

Sergeant Smith opened the garbage can lid to determine what was causing the chemical odor emanating from it. A bag in the garbage can contained a Coleman fuel container and several cans of starter fluid, which Trooper Bowles testified are known precursors associated with the manufacture of methamphetamine. He attested that the ether cans in the garbage can had puncture holes in the bottoms of the cans, which is a known method for extracting ether from cans in the manufacture of methamphetamine.

The officers walked through the yard because the smell was also strong around the outbuilding. Trooper John Williams, who Trooper Bowles testified is certified to dismantle methamphetamine labs, arrived on the scene and confirmed that the "overwhelming odor" was coming from the outbuilding, and that the outbuilding likely contained an active methamphetamine lab. This caused them to be concerned for their safety because of the danger posed by methamphetamine labs. Therefore, they believed that exigent circumstances were present to justify their warrantless entry into the outbuilding, which they proceeded to enter. The door was locked with a padlock, but the officers were able to pry open the latch to the door to allow them to gain entry. Upon entering the outbuilding, it became apparent that it contained an active methamphetamine lab.

At that point, the officers decided to obtain a search warrant because there was a motion sensor light on the house that turned on when the officers were in the yard and they were concerned about the safety of the officers who would dismantle the lab if someone was inside the house. Trooper Bowles left to obtain the search warrant. While he was away, he heard over his police radio that the car that had been identified as belonging to that residence was seen driving past the house. By the time Trooper Bowles returned to the residence with the search warrant, Miller and Anita Parker had also returned to the residence. Trooper Bowles informed them that he had a search warrant and if Miller and Parker wanted to open the door to allow them to conduct the search, that was fine but, otherwise, the officers would break down the door to gain entry. Miller then provided them with a key to unlock the door. Trooper Bowles testified that during the search of the residence, which was a search for people who might harm them, the officers discovered in plain view a small bag of methamphetamine and some kind of pipe with tubing.

Following the jury trial, Miller was convicted of manufacturing methamphetamine, possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine, possession of a controlled substance (methamphetamine), and possession of drug paraphernalia. He was sentenced to thirty-five years of imprisonment.

Miller appealed and the Kentucky Supreme Court reversed his conviction for possession of a controlled substance (methamphetamine) on double jeopardy grounds, but affirmed his remaining convictions. See Miller v. Commonwealth, No. 2006-SC-000764-MR, 2009 WL 160370, *1 (Ky. Jan. 22, 2009) (unpublished). On remand, Miller was re-sentenced based upon his remaining convictions, and he received thirty years of imprisonment.

Miller moved to vacate the judgment against him pursuant to RCr 11.42. In that motion, he asserted various claims of the ineffective assistance of trial counsel. He also moved for the appointment of counsel, and post-conviction counsel was appointed for him. Counsel then moved to supplement Miller's RCr 11.42 motion with a claim that trial counsel rendered ineffective assistance by failing to move to suppress and exclude the evidence that was obtained from the warrantless search of Miller's property.

An evidentiary hearing was held concerning Miller's RCr 11.42 motion, but the circuit court ultimately denied the motion. Miller now appeals, contending only that he received the ineffective assistance of trial counsel when counsel failed to move to suppress and exclude the evidence obtained from the warrantless search of his property.

II. STANDARD OF REVIEW

In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.

III. ANALYSIS

Miller alleges that he received the ineffective assistance of trial counsel when counsel failed to move to suppress the evidence that was obtained during the warrantless search of the garbage can and the outbuilding that were located on his property. To prove that he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, Miller must show that: (1) counsel's performance was deficient, in that it fell outside "the wide range of reasonable professional assistance"; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The search of the outbuilding and the garbage can on Miller's property was a warrantless search. To justify a warrantless search of residential property,2 there must be both probable cause and exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 2459, 153 L.Ed.2d 599 (2002).

Bishop v. Commonwealth, 237 S.W.3d 567, 569 (Ky. App. 2007) (internal quotation marks and citations omitted).

In the present case, Miller concedes in his appellate brief that there was probable cause for the search based upon "information provided by the anonymous tipster coupled with the odor observed by police at the scene." However, Miller argues that there were no exigent circumstances to justify the warrantless search and that counsel rendered ineffective assistance in failing to move to suppress the evidence found during the warrantless search.

Yet, exigent circumstances existed in this case because the officers smelled the "overwhelming odor" of anhydrous ammonia and ether, which are known precursors for the manufacture of methamphetamine. This provided the officers a sufficient reason to believe there was a risk of danger to the officers themselves or others. Miller contends that his property was in a rural area and, therefore, there was no risk of injury to others. However, the original complaint came from an anonymous caller in that area, Trooper Bowles testified that he could smell the chemical odor through the rolled-up windows of his car when he entered the 1600 block of Carter Lane, Miller's property was located at 1663 Carter Lane, and the outbuilding containing the methamphetamine lab was approximately fifty-six yards from the roadway. Fumes from the chemicals involved in the manufacture of methamphetamine pose a danger to the public. See Pate v. Commonwealth, 243 S.W.3d 327, 331 (Ky. 2007), as corrected (2008) (citing United States Courts of Appeals cases that discuss the dangers associated with methamphetamine manufacture).

Additionally, the fact that the smell of anhydrous ammonia and ether was overwhelming provided the officers a sufficient reason to believe that there was a risk that evidence would be destroyed if the chemicals exploded. See Bishop, 237 S.W.3d at 569. This is because methamphetamine manufacturing is known to be inherently dangerous. See Pate v. Commonwealth, 243 S.W.3d 327, 331 (Ky. 2007), as corrected (2008) (citing various United States Courts of Appeals cases discussing the dangers associated with the manufacture of methamphetamine and with the chemicals used in that manufacturing process). Miller argues that Bishop and other cases cited by the Commonwealth and the circuit court on this point were entered after the time that his trial counsel should have moved to suppress the evidence and, therefore, that it was not reasonable for his counsel to think that any motion to suppress the evidence that she could have filed would have been denied, as she claimed during the RCr 11.42 evidentiary hearing. However, Miller was indicted in 2006, and cases prior to that time held that police are permitted to conduct a warrantless search if the circumstances present a risk of the destruction of evidence, see Williams v. Commonwealth, 147 S.W.3d 1, 8 (Ky. 2004), or of imminent injury to people, see Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978). The circumstances of this case meet both of those exceptions to the warrant requirement. Therefore, the warrantless search of the garbage can and the outbuilding was proper.

Because the warrantless search was proper, Miller cannot show that he was prejudiced by his counsel's failure to move to suppress the evidence that was found during the search. Consequently, his ineffective assistance of counsel claim lacks merit.

Accordingly, the order of the Warren Circuit Court is affirmed.

ALL CONCUR.