Hensley v. State

• Citation: 962 N.E.2d 1284
• Decision Date: 08 March 2012
• Docket Number: No. 63A01–1105–CR–195.,63A01–1105–CR–195.
• Parties: Pamela J. HENSLEY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

962 N.E.2d 1284

Pamela J. HENSLEY, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 63A01–1105–CR–195.

Court of Appeals of Indiana.

March 8, 2012.

[962 N.E.2d 1285]

Melissa J. Haley, Ripstra Law Office, Jasper, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION KIRSCH, Judge.

Pamela J. Hensley (“Hensley”) brings this discretionary interlocutory appeal

[962 N.E.2d 1286]

from the trial court's denial of her motion to suppress. She raises one issue on appeal, which we restate as whether the search of Hensley's home violated her right to be free from unreasonable search and seizure guaranteed under the Fourth Amendment to the United States Constitution.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Hensley, who lives in a home at the North Side Trailer Court in Petersburg Indiana, is married to Robert Hensley (“Robert”). During the time in question, Robert was on probation through the Pike Circuit Court. The pertinent conditions of his probation provided that Robert “shall not possess or use any firearm” and “shall not consume or use any alcohol or controlled substance unless prescribed by a physician.” ¹ Appellant's App. at 34. An additional condition of probation “allow[ed] a Probation Officer to visit his home and conduct a warrantless search.” ² Id.

In April 2010, Corporal Chad Tharp (“Officer Tharp”) of the Petersburg Police Department received a tip that Robert, who the officer knew to be on probation, was in possession of marijuana. When deposed prior to trial, Officer Tharp could not recall who had provided the tip. Appellant's App. at 69–70. Officer Tharp took no action at that time. Three weeks after having received the marijuana tip, Officer Tharp was patrolling Hensley's neighborhood when someone approached him and said that Robert possessed a firearm. Tr. at 11. Officer Tharp understood that he “didn't have enough for a search warrant,” so on April 22, 2010, he contacted the Chief Probation Officer of Pike County, Susan Stuckey (“Stuckey”). Tr. at 13. Based on the information supplied by Officer Tharp, Stuckey agreed to do a probation check that same day.

Stuckey went to Hensley's home, accompanied by Officer Tharp and a second Petersburg Police Officer, Chad McClellan (“Officer McClellan”). Officer Tharp assumed that because Robert and Hensley were married, they jointly owned the house and shared the bedroom. Tr. at 17. The police knew that Justin Williams, a former coworker of Robert's, also had lived at the house. Tr. at 11, 23; Appellant's Br. at3.

Robert was not at the residence when the officers arrived. Stuckey told Hensley that the purpose of the visit was to do a home check, and Hensley allowed them into the house because Robert was on probation. Stuckey initially helped Hensley put away her dogs, and as the two talked, Stuckey learned that only Hensley slept in the bedroom, and Robert slept in the living room.

[962 N.E.2d 1287]

When Officers Tharp and McClellan entered the home, they did not perform a safety sweep, nor did they inquire as to who owned or lived in the home; instead, they immediately began to search. While searching in the bedroom, Officer Tharp flipped the mattress and found a can containing a green, leafy substance, which was later determined to be marijuana. He then opened “Pam Hensley's underwear drawer [and] in a ring box” found “an unknown tablet that was later identified by a pharmacist to be a generic form of Xanax.” Appellant's App. at 90. In her deposition, Stuckey testified that it was not common in a probation check to look under mattresses or to search in a probationer's wife's “underwear drawer.” Id. at 84, 90–91. No firearms were found during the search.

Stuckey, who had started her probation search at the front of the house, followed probation protocol and looked for anything in plain view, but saw nothing illegal or suspicious. TV. at 26. Upon reaching the bedroom, Stuckey looked at the disarray in the bedroom and believed it had been “ransacked.” Id.

Having found the marijuana and generic Xanax pill, the police obtained a search warrant and, thereafter, found “rolling papers,” a “one[-]hitter pipe,” and “two prescription bottles”—one with the name Jack Onyett and one with the name Pam Bailey. Appellant's App. at 56, 58. Based on the evidence obtained, the State charged Hensley with the following drug-related charges: (1) possession of a schedule IV controlled substance ³ as a Class D felony; (2) possession of a legend drug without a prescription,⁴ a Class D felony; (3) maintaining a common nuisance ⁵ as a Class D felony; (4) possession of marijuana ⁶ as a Class A misdemeanor; and (5) possession of paraphernalia ⁷ as a Class A misdemeanor.

Prior to trial, Hensley filed a motion to suppress the evidence seized during the search of her home. A hearing was held, and the trial court considered the parties' briefs and the published depositions of Officers Tharp and Stuckey before entering an order denying Hensley's motion to suppress. The trial court certified the order for interlocutory appeal, and this court accepted Hensley's interlocutory appeal. Hensley now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Hensley contends that the warrantless search of her home was illegal under the Fourth Amendment to the United States Constitution and, as such, that the evidence found during the search should have been suppressed. Specifically, she argues that the trial court abused its discretion by admitting the evidence obtained during the search because: (1) “[s]he was not the person on probation”; (2) “the search exceeded the scope and regulatory scheme of a probation search”; and (3) “the search was merely a pretext to conduct an investigatory search without first securing a warrant.” Appellant's Br. at 1.

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”

[962 N.E.2d 1288]

Micheau v. State, 893 N.E.2d 1053, 1059 (Ind.Ct.App.2008), trans. denied, 915 N.E.2d 977 (2009). The Fourteenth Amendment makes this protection applicable to actions by state officials. Allen v. State, 743 N.E.2d 1222, 1227 (Ind.Ct.App.2001) (citing Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), trans. denied ). “[A] search arises out of an intrusion by a governmental actor upon an area in which a person maintains a ‘reasonable expectation of privacy.’ ” Holder v. State, 847 N.E.2d 930, 935 (Ind.2006) (quoting Katz v. U.S., 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576(1967) (Harlan, J., concurring)). A constitutionally protected reasonable expectation of privacy exists where there is both a subjective expectation of privacy and societal recognition that such expectation of privacy is reasonable. Id. at 936.

Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Danner v. State, 931 N.E.2d 421, 428 (Ind.Ct.App.2010), trans. denied. However, the United States Supreme Court has determined that “the ‘special needs' of a probationary system, particularly the need to supervise probationers closely, justifie[s] warrantless searches based on reasonable suspicion rather than probable cause.” State v. Schlechty, 926 N.E.2d 1, 3–4 (Ind.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 934, 178 L.Ed.2d 776(U.S.2011) (citing Griffin v. Wisconsin, 483 U.S. 868, 873–74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)).

In Schlechty, our Supreme Court, citing to the reasoning of the United States Supreme Court, noted the two different ways in which a probation search may be analyzed under the Fourth Amendment:

[A] warrantless probation search under Griffin may be justified on the basis of reasonable suspicion to believe a probation violation has occurred because,...