from the Marion Superior Court Trial Court Cause No.
49G06-1711-F4-43515 The Honorable Mark D. Stoner, Judge, The
Honorable Jeffrey L. Marchal, Magistrate
Attorney for Appellant Deborah Markisohn Marion County Public
Defender Agency Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Chandra K. Hein Deputy Attorney General
Barteau, Senior Judge.
of the Case
Kurt McElroy brings this interlocutory appeal from the trial
court's denial of his motion to suppress. We affirm.
McElroy presents one issue for our review, which we restate
as whether the search of his home violated his federal and
state constitutional rights.
and Procedural History
Demarqus Whitley, McElroy's step-son, was placed on home
detention through Marion County Community Corrections (MCCC)
in October 2017. Several of the community corrections program
conditions to which Demarqus agreed provide:
If you do not own, rent or lease the residence in which you
reside, you must advise the owner(s) of the residence of the
conditions of Electronic Monitoring.
You must not possess alcohol or non-prescribed drugs on your
person, in your residence or in your property at any time.
The residence in which you are residing must be alcohol and
non-prescribed drug-free as well. If other residents fail to
comply, you will be required to move.
You waive your right against search and seizure, and shall
permit MCCC staff, or any law enforcement officer acting on a
[sic] MCCC's behalf, to search your person, residence,
motor vehicle, or any location where your personal property
may be found, to insure compliance with the requirements of
You must not use, purchase or possess weapons, firearms, or
ammunition. Any weapons, firearms, or ammunition found in the
residence where you reside will be confiscated and will
result in the immediate filing of a Notice of Violation with
There are to be no weapons in the residence regardless if any
residents have a valid weapon permit.
Ex. Vol., State's Ex. 1, p. 4. While Demarqus was
participating in the program, he resided at the home of his
mother, Tamika Whitley, and her husband, McElroy. The living
arrangements were such that Demarqus slept on the couch in
the living room, kept his belongings next to the couch and in
a closet in the living room, and used the downstairs
On November 7, 2017, Jill Jones, law enforcement liaison with
MCCC, and several police officers conducted a home visit to
ensure Demarqus' compliance with his home detention
conditions. At the door of the residence, Jones explained to
McElroy and Demarqus that she was there to perform a home
visit. Immediately upon entering the residence, Jones and the
officers smelled the odor of burnt marijuana. The officers
then began to perform a routine sweep of the house for
safety. While performing ...