State v. Vanderkolk

• Decision Date: 09 June 2015
• Docket Number: No. 79S04–1411–CR–718.,79S04–1411–CR–718.
• Citation: 32 N.E.3d 775
• Parties: STATE of Indiana, Appellant (Defendant), v. Brishen R. VANDERKOLK, Appellee (Plaintiff).
• Court: Indiana Supreme Court

32 N.E.3d 775

STATE of Indiana, Appellant (Defendant)

v.Brishen R. VANDERKOLK, Appellee (Plaintiff).

No. 79S04–1411–CR–718.

Supreme Court of Indiana.

June 9, 2015.

Gregory F. Zoeller, Attorney General of Indiana, Ian A.T. McLean, Stephen R. Creason, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellant.

Bruce W. Graham, Graham Law Firm P.C., Lafayette, IN, Attorneys for Appellee.

On Transfer from the Indiana Court of Appeals, No. 79A04–1308–CR–407

DICKSON, Justice.

A probationer or community corrections participant may, by a valid advance consent or search term in the conditions of release, authorize a warrantless search of his or her premises without reasonable suspicion. Because the search term in this case informed the participant that he was consenting only to searches made upon probable cause, we reverse the partial denial of the defendant's motion to suppress.

In December 2012, defendant Brishen Vanderkolk was living in the residence of Jordan Sullivan (who was on home detention under Community Corrections supervision in Tippecanoe County) when community corrections officers went to the Sullivan residence to conduct a routine warrantless search to assure Sullivan's compliance with the conditions of the program. As the search began, the officers had no suspicion of illegal activity. But after entering the residence, the ensuing search uncovered illegal drugs and a drug smoking device in the common areas shared by the defendant and Sullivan as well as drugs and drug paraphernalia in the private bedrooms of both the defendant and Sullivan. The defendant was charged with Maintaining a Common Nuisance as a Class D felony; Dealing in Marijuana as a Class A misdemeanor; Possession of Marijuana as a Class A misdemeanor; and Possession of Paraphernalia as a Class A misdemeanor. The defendant filed a motion to suppress all of the evidence, arguing that it stemmed from an improper search in violation of the Search and Seizure Clauses of the Indiana and United States Constitutions. The trial court granted the motion in part, finding “that the Community Corrections officers had consent to search the residence of Jordan Sullivan and such common areas as were available to him” and thus denying suppression of items found in such areas but suppressing “items found and/or seized in the private bedroom of [the defendant].” Appellant's App'x at 61.

The State appealed,¹ relying primarily on Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), and urges that the challenged search by the officers was authorized under the Fourth Amendment to the United States Constitution (a) because of Sullivan's community corrections status and/or (b) because of Sullivan's consent. The State argues that once lawfully inside, the search of the defendant's private bedroom was part of a reasonable protective sweep. Finally, the State argues that the conduct of the officers throughout the entire entry and search of the residence was reasonable under the Indiana Constitution. The defendant responds that a probation or community corrections home detention participant is entitled to Fourth Amendment protection that requires corrections officers to have accompanying reasonable suspicion of either criminal activity or a violation of probationary terms in order to conduct a compliance search and that a participant may not dispense of this right even by signing a valid waiver. He argues that Samson is specifically limited in application only to parolees and that State v. Schlechty, 926 N.E.2d 1 (Ind.2010) requires that reasonable suspicion must accompany a search of a probationer's residence under all circumstances. The Court of Appeals affirmed the trial court. State v. Vanderkolk, 10 N.E.3d 585, 591 (Ind.Ct.App.2014).

For purposes of today's analysis, “probation” is not distinguishable from “community corrections,” and the terms will be used interchangeably. A trial court has the authority to place a convicted offender “in home detention under IC 35–38–2.5 instead of commitment to the department of correction.”

Ind.Code § 35–38–1–21(b) (2012). Home detention may be imposed as either a condition of probation or as an alternative placement that is part of an offender's community corrections program. See Ind.Code § 35–38–2.5–5 (2012)² and Ind.Code § 35–38–2.6–4.5 (2012). “Both probation and community corrections programs serve as alternatives to commitment to the Department of Correction and both are made at the sole discretion of the trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind.1999). Placement under either probation or a community corrections program is “a matter of grace and a conditional liberty that is a favor, not a right.” Id. (internal quotations and citations omitted). The similarities between the two programs have led to common treatment in appellate review of a trial court's decision to revoke either, but our Court noted in Cox that “there may be other matters related to community corrections and probation which the law will not treat in the same way.” Id. at 549 n. 6. The present case does not call for differing treatment. Although conditions of probation and other rules governing the process of probation are listed under Indiana Code section 35–38–2 et seq. and rules governing the direct placement in a community corrections program are governed by Indiana Code section 35–38–2.6 et seq. , home detention under either is not necessarily different in its purpose or execution. The difference rather relates to the administration and costs of the program. See Ind.Code § 35–38–2.5–5(c) (“The court may order supervision of an offender's home detention to be provided by the probation department for the court or by a community corrections program that provides supervision of home detention.”) and Ind. Code § 35–38–2.5–5.5(d) (“A probation department or community corrections program that supervises an offender on home detention is responsible for the expenses of the supervision.”).

1. Community Corrections Status and Warrantless Searches

The State first contends that the challenged search was authorized due to Sullivan's community corrections status. Asserting that Samson is controlling, the State contends that Sullivan's status as a home detention participant alone authorized the corrections officers' presence in the residence (irrespective of reasonable suspicion) and that a protective sweep of the residence and the plain view of illegal drugs and paraphernalia once inside the residence combined to allow for the search and seizure of items in the common areas and in the defendant's private bedroom.

In Samson, the United States Supreme Court permitted a suspicionless search where a parolee had agreed to a parole search condition authorizing searches “with or without a search warrant and with or without cause.” 547 U.S. at 846, 126 S.Ct. at 2196, 165 L.Ed.2d at 255. While Samson dispenses with the need for reasonable suspicion where there exists a valid parole search condition permitting such searches, it does not authorize suspicionless searches based on a parolee's status alone.

We reject the State's contention that Sullivan's status as a community corrections participant, standing alone, operated to authorize the warrantless and suspicionless compliance search of the Sullivan home by community corrections officers.

2. Warrantless Search as Authorized by Consent

The State alternatively argues that the search of the home was authorized because Sullivan had waived his Fourth Amendment rights and consented in advance to the search of his residence by signing his community corrections home detention participant handbook. Sullivan was required to sign the conditions that concluded with the following language:

I have been advised of my rights and understand that any Community Corrections staff, Law Enforcement Officer or Probation Officer may enter my residence at any time without prior notice to search upon probable cause.

Appellant's Ex. 1 at 5, Tr. at 86.

Here the State argues that the waiver agreement notified Sullivan of his rights, enabling him to consent to suspicionless searches. The State seizes upon the waiver agreement language that stated: “I agree and specifically waive any and all rights as to search and seizure under the laws and constitutions of both the United States and the State of Indiana.” Appellant's Reply Br. at 4 (quoting Appellant's Ex. 1 at 5, Tr. at 86). This waiver agreement language, however, was fatally compromised by the waiver's closing statement: “I have been advised of my rights and understand that any Community Corrections staff, Law Enforcement Officer or Probation Officer may enter my residence at any time without prior notice to search upon probable cause. ” Appellant's Ex. 1 at 5, Tr. at 86 (emphasis added). This language conditioned Sullivan's search consent upon the existence of probable cause.

In determining that the warrantless search of a probationer's residence based on reasonable suspicion was reasonable in United States v. Knights, the United States Supreme Court considered that the probation order “clearly expressed the search condition” and “unambiguously informed [the defendant] of it.” 534 U.S. 112, 119, 122 S.Ct. 587, 591–92, 151 L.Ed.2d 497, 505 (2001). In the present case, the search condition was not clearly expressed and the defendant was not unambiguously informed. The defendant consented only to searches upon probable cause, not to the type of search conducted in the present case. The ensuing search and seizures were thus unlawful under the Fourth Amendment, and the resulting evidence must be suppressed. As a consequence of the unlawfulness of the officers' entry into the Sullivan home, the State's contentions that the ensuing search was permissible as a protective sweep or executed in a reasonable manner under the Indiana Constitution are thus irrelevant.

3. Reasonable Suspicion as a Basis for Probation and Community Corrections Searches

The defendant contends that ...