State v. Harper

• Decision Date: 30 October 2019
• Docket Number: Court of Appeals Case No. 18A-CR-2811
• Citation: 135 N.E.3d 962
• Parties: STATE of Indiana, Appellant/Cross Appellee-Plaintiff, v. Tyree L. HARPER, Appellee/Cross Appellant-Defendant.
• Court: Indiana Appellate Court

135 N.E.3d 962

STATE of Indiana, Appellant/Cross Appellee-Plaintiff,

v.Tyree L. HARPER, Appellee/Cross Appellant-Defendant.

Court of Appeals Case No. 18A-CR-2811

Court of Appeals of Indiana.

FILED October 30, 2019

Attorneys for Appellant/Cross Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Supervising Deputy Attorney General, Indianapolis, Indiana

Attorney for Appellee/Cross Appellant: Stephen Gerald Gray, Indianapolis, Indiana

Pyle, Judge.

Statement of the Case

[1] The State of Indiana appeals the trial court's grant of Tyree Harper's ("Harper") motion to suppress. On cross-appeal, Harper asserts that the trial court erred by denying his motion to discharge pursuant to Indiana Criminal Rule 4(C). Concluding that the trial court erred by granting Harper's motion to suppress, we reverse and remand for further proceedings. In addition, we affirm the trial court's denial of Harper's motion to discharge.

[2] We affirm in part, reverse in part, and remand for further proceedings.

Issues

1. Whether the trial court erred by granting Harper's motion to suppress.

2. Whether the trial court erred by denying Harper's motion to discharge under Criminal Rule 4(C).

Facts

[3] In September 2015, Harper was placed on parole following a conviction for possession of a firearm by a serious violent felon, and he signed a Conditional Parole Release Agreement ("parole agreement"). Under paragraph 9, titled, "HOME VISITATION AND SEARCH," the parole agreement provided that:

I understand that I am legally in the custody of the Department of Correction and that my person and residence or property under my control may be subjected to reasonable search by my supervising officer, or authorized official of the Department of Correction if the officer or official has reasonable cause to believe the parolee is violating or is in imminent danger of violating a condition to remaining on parole.

(State's Ex. 4). The parole agreement also provided that the use, possession, or trafficking illegally of a controlled substance and out-of-state travel without permission were parole violations.

[4] On June 16, 2016, Harper's parole officer, Josh Jellison ("Parole Officer Jellison"), received information from an anonymous source that Harper was traveling to New York and dealing narcotics in Indianapolis. The complaining party also stated that Harper had rented a storage unit on Mitthoeffer Road. Four days later, Parole Officer Jellison called Harper in for a parole meeting and administered a drug test wherein Harper tested positive for cocaine. During this meeting, Harper also admitted to traveling to New York without permission. Harper's positive drug test and admission to traveling out of the state were both violations of parole. Harper was arrested for the violations and taken into custody at the parole office.

[5] Parole Officer Jellison and Harper then went to Harper's home, and Parole Officer Jellison conducted a warrantless search. During the search, Parole Officer Jellison located a receipt, which was in Harper's name, for a storage unit at 2425 North Mitthoeffer Road. Parole Officer Jellison went to the storage unit with Harper and unlocked the unit with one of Harper's keys. Inside the storage unit, in plain view, Parole Officer Jellison observed a black handgun and a large, clear Ziploc bag containing a block of white substance. Parole Officer Jellison immediately stopped this initial search of the storage unit and advised an IMPD officer present of what he had observed.

[6] After obtaining a search warrant, the police seized the gun and white powder block during their subsequent search of the storage unit. They also seized another plastic bag with a white powdery substance, pills, and other materials consistent with drug trafficking. A laboratory analysis disclosed that the storage unit contained two batches of cocaine weighing 558.1 grams and 254.79 grams and twelve fake .12-gram oxycodone pills containing heroin. Harper was then transported to the custody of the Department of Correction ("DOC").

[7] On June 29, 2016, the State charged Harper with Level 2 felony dealing in cocaine in ten (10) or more grams, Level 3 felony possession of cocaine in twenty-eight (28) or more grams, and Level 4 felony unlawful possession of a firearm by a serious violent felon. According to the Chronological Case Summary ("CCS"), an arrest warrant was issued and then recalled on June 30, 2016. The CCS further shows that an arrest warrant was again issued on June 30, 2016 and served over a year later, on August 16, 2017, when Harper was released from the DOC.

[8] On April 10, 2018, Harper filed two motions in the trial court. First, Harper filed a motion to suppress the evidence, arguing that the initial warrantless search of the storage unit "exceeded the bounds of a proper ‘parole search’ and was, in fact, an ‘investigatory search’ intended to discover evidence of new criminal activity." (App. 47). He argued that, as a result, the evidence seized pursuant to the search warrant during the subsequent search should be suppressed as fruit of the poisonous tree. Next, Harper filed a motion for discharge under Criminal Rule 4(C). Harper argued that he had "not been brought to trial within one (1) year of his arrest or the date that charges were filed." (App. 51).

[9] The trial court held a hearing on both motions on May 22, 2018. The trial court granted Harper's motion to suppress and denied his motion for discharge. In regards to the motion to suppress, the trial court found that the search of Harper's person and residence were lawfully conducted by Parole Officer Jellison but that the initial search of Harper's storage unit required a search warrant and violated the Fourth Amendment to the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. The State now appeals.

Decision

[10] The State argues that the trial court erred when it granted Harper's motion to suppress. Harper, as the cross-appellant, asserts that the trial court erred by denying his motion to discharge pursuant to Indiana Criminal Rule 4(C). We will address each issue in turn.

1. Motion to Suppress

[11] The State appeals following the trial court's grant of Harper's motion to suppress, which effectively terminated the prosecution of this case.¹ Because the State appeals from a negative judgment, it bears the burden to show that the trial court's ruling was contrary to law. State v. Brown , 70 N.E.3d 331, 335 (Ind. 2017). When reviewing a trial court's suppression ruling, we determine whether the record contains substantial evidence of probative value that supports the trial court's decision. Id. "We evaluate the trial court's findings of fact deferentially, neither reweighing the evidence nor reassessing the credibility of the witness." Id. However, we review the trial court's conclusions of law de novo . Id.

[12] The State argues that a warrant was not required for the initial search of the storage unit and that the initial search was permitted pursuant to a valid search condition in the parole agreement.

[13] Generally, searches should be conducted pursuant to a warrant supported by probable cause. Allen v. State , 743 N.E.2d 1222, 1227 (Ind. Ct. App. 2001), reh'g denied , trans. denied . "However, the United States Supreme Court has determined that ‘[a] State's operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.’ " Id. (quoting Griffin v. Wisconsin , 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) ).

[14] There are two methods for analyzing parole or probation searches under the Fourth Amendment. State v. Schlechty , 926 N.E.2d 1, 5 (Ind. 2010). The first is the "special needs" exception outlined in Griffin ; the second is a balancing test which weighs the totality of the circumstances outlined in United States v. Knights , 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Schlechty, 926 N.E.2d at 5.

[15] Concerning the "special needs" exception, a warrantless probation search under Griffin "may be justified on the basis of reasonable suspicion to believe a probation violation has occurred because, among other things, supervision of probationers is necessary to ensure that probation restrictions are in fact observed, and that the community is not harmed by the probationer being at large." Id. at 6. Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, but it still requires at least a minimal level of objective justification and more than an inchoate and unparticularized suspicion or "hunch" of criminal activity. Id. at 7 (citing Illinois v. Wardlow , 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ). Accordingly, "[t]his court has held that a probationer is entitled to limited protection of his privacy interests." Allen , 743 N.E.2d at 1227. "[A]ffording probationers lesser protections is predicated on the premise that probation officers, or police working with probation officers, are conducting searches connected to the enforcement of conditions of probation and not for normal law enforcement purposes." Id. at 1227-28 (quoting Polk v. State , 739 N.E.2d 666, 669 (Ind. Ct. App. 2000) ). When a search is not conducted within the regulatory scheme of probation enforcement, a probationer's normal privacy rights cannot be stripped from him. Id. at 1228. The State must demonstrate that a warrantless search of a probationer was a true probationary search and not an investigatory search. Micheau v. State , 893 N.E.2d 1053, 1059 (Ind. Ct. App. 2008), trans. denied . A probation search cannot be a mere subterfuge enabling the police to avoid obtaining a search warrant. Id. We apply this same analysis to parolees. See State v. Vanderkolk , 32 N.E.3d 775, 779 (Ind. 2015) ("[T]he similarities between parole and probation (or...