Appeal from the Tippecanoe Superior Court, No. 79D04-1301-FD-6. The Honorable Gregory J. Donat, Judge. On Transfer from the Indiana Court of Appeals, No. 79A04-1308-CR-407.
FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana, Indianapolis, Indiana; Ian A.T. McLean, Stephen R. Creason, Deputy Attorneys General, Indianapolis, Indiana.
FOR APPELLEE: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana.
Dickson, Justice. Rush, C.J., and David and Massa, JJ., concur. Rucker, J. concurs in result.
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. 2
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, 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)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 ...