State v. Vanderkolk
| Citation | 10 N.E.3d 585 |
| Decision Date | 02 September 2014 |
| Docket Number | No. 79A04–1308–CR–407.,79A04–1308–CR–407. |
| Parties | STATE of Indiana, Appellant–Plaintiff, v. Brishen R. VANDERKOLK, Appellee–Defendant. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
Bruce W. Graham, Graham Law Firm P.C., Lafayette, IN, Attorney for Appellee.
Community corrections officers searched home detention participant Jordan Sullivan's residence and found contraband in the bedroom of his roommate Brishen Vanderkolk. Upon being charged with several offenses, Vanderkolk filed a motion to suppress. Evidence at the hearing showed that Sullivan had signed a waiver of his Fourth Amendment rights before beginning home detention and that the officers searched his residence to ensure he was complying with the program. The officers did not testify as to any reports of suspicious activity. The trial court granted the motion to suppress.
Caselaw from the U.S. Supreme Court as well as our Indiana courts leads us to conclude that Sullivan did not completely waive his Fourth Amendment rights. Because the Fourth Amendment required reasonable suspicion for the search, we affirm the court's grant of Vanderkolk's suppression motion.
To determine whether the trial court erred by granting the motion to suppress, we examine: (1) whether Vanderkolk may challenge the constitutionality of the search predicated on Sullivan's waiver of his Fourth Amendment rights, and if so, (2) whether the search was justified by Sullivan's waiver.
In April 2012, Sullivan began serving a sentence on home detention through Tippecanoe County Community Corrections. Before starting the program, he signed a form in which he “relinquish[ed]” his Fourth Amendment rights during his period of home detention:
The waiver of rights is limited to searches and seizures for any controlled substances, intoxicat[ing] liquor or deadly weapons as defined by Indiana law. I agree to submit to searches and seizures for such substances of my person, property and vehicle(s) at any time by any Community Corrections Staff, Law Enforcement Officer, and/or sentencing Court.
* * * * * *
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.
In December 2012, TCCC officers conducted a search of Sullivan's residence to ensure he was complying with the program. One officer went up to the residence, made contact with someone there, and then signaled the other officers by radio that they could approach and begin searching the residence. As the other officers entered, a woman identified as Sullivan's girlfriend was to the right, and to the left, Sullivan was descending a staircase and said he was checking to see if his roommate was home.
Upon entering, the officers immediately noticed an odor of marijuana or spice being smoked. They also thought they heard a door being closed somewhere in the residence. Based on their standard protocol, the odor of illegal drugs, and the uncertainty as to who else was there, they did a protective sweep of the entire house. They observed contraband in plain view in the basement and on the second floor, which consisted of a single bedroom.
After the sweep showed no one else was in the residence, the officers conducted their search. Contraband was collected from the basement, the first floor bedroom, the living room, and the second floor bedroom. The TCCC officers then contacted the Tippecanoe County Sheriff's Department to request a deputy to secure the evidence. The deputy arrived at the house, and the TCCC officers showed her the evidence. When she went outside to get her camera, she saw a man in a truck at the end of the driveway. As he started to back out, the deputy shined her light on him and talked with him. The man, later identified as Vanderkolk, said he lived in the second floor bedroom.
The State charged Vanderkolk with Class D felony maintaining a common nuisance, Class A misdemeanor dealing in marijuana, Class A misdemeanor possession of marijuana, and Class A misdemeanor possession of paraphernalia. Vanderkolk filed a motion to suppress. The evidence at the suppression hearing showed the TCCC officers searched the residence as a matter of protocol to ensure Sullivan's compliance with the program:
Q I[t's] my understanding that you came to Mr. Sullivan's and Mr. Vanderkolk's residence purely because you wanted to look around for safety or conduct—or compliance violations, is that correct?
A Yes.
Q Ok, so you hadn't received information of possible illegal activity there?
A No sir.
Q DTF, like drug task force didn't call and say we heard some suspicious things about this residence?
A No sir.
Q No neighbors were complaining about traffic or that type of thing out there?
A No sir.
Q Was this purely a random search for compliance and safety?
A Sir, I will state we don't do random searches; we do a search typically on everyone who enters the program to ensure compliance and ensure there is nothing in the residence when they begin. I cannot remember if this was soon after he entered the program or later on, but we do typically search nearly everyone who enters our program.
Q Well, this wasn't his initial search of the residence, was it?
A I don't believe we searched him before this one.
* * * * * *
Q Had [the lead officer] given you information that there were violations or problems at this house?
A No sir, I believe that maybe some comment of suspicious activity, but I cannot recall for definite. We did this search to ensure compliance and officer safety.
Q Are you saying you have a report of suspicious activity or you don't know?
A I don't know, sir.
Q Ok. So you can't articulate any reason that you were at this residence other than you wanted to be?
A No sir, it was officer safety and ensuring compliance with the program.
Q Well, what were the officers[ ] concerned about, safety wise?
A Weapons, firearms, anything that can be used against us.
Q I understand that generalized concern; but did you have any specific knowledge or facts that there may be weapons in this particular house?
A No sir.
Q So you just showed up?
A Well—
Q For no reason other than you wanted to be there?
A As I said sir, we were ensuring compliance with the program.
Tr. pp. 58–60. The trial court granted the suppression motion. The State now appeals.
The State contends the trial court erred by granting Vanderkolk's suppression motion. In reviewing a trial court's ruling on a motion to suppress, we determine whether the record discloses substantial evidence of probative value that supports the trial court's decision. State v. Washington, 898 N.E.2d 1200, 1203 (Ind.2008). We do not reweigh evidence. Id. The State, appealing from a negative judgment, must show the trial court's grant of the suppression motion was contrary to law. Id.
The State contends the trial court erred by granting the suppression motion because Vanderkolk did not have “standing” to challenge Sullivan's waiver of his Fourth Amendment rights. It cites Polk v. State, 822 N.E.2d 239 (Ind.Ct.App.2005), trans. denied. In that case, Polk was a passenger in a car that was pulled over for a traffic violation, and the driver gave consent to search the car. This Court concludedthat Polk lacked “standing” to challenge the constitutionality of the manner in which the police obtained the driver's consent, noting that “Fourth Amendment rights are personal and may not be vicariously asserted.” Id. at 245.
The State asks us to conclude that Vanderkolk, like Polk, could not challenge the constitutionality of the search because Vanderkolk, like Polk, was not the person who gave consent.
However, Polk lacked “standing” because he had no reasonable expectation of privacy in the driver's car, not because he was not the person who gave consent. This is the clear import of the case on which Polk relied, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). There, the U.S. Supreme Court dispensed with the rubric of standing, instead subsuming it within the substantive analysis of a Fourth Amendment claim. See id. at 139, 99 S.Ct. 421 (). The focus of the inquiry was therefore “whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it.” Id. at 140, 99 S.Ct. 421. The Court explained:
A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.
Id. at 134, 99 S.Ct. 421 (citations omitted).
Here, Vanderkolk had a reasonable expectation of privacy in the residence because he lived there. He may thus challenge the search on Fourth Amendment grounds. See Pollard v. State, 270 Ind. 599, 388 N.E.2d 496, 502–03 (1979) ().
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