Lonny Hodges v. State of Indiana , 54 N.E.3d 1055 ( 2016 )

FILED
May 18 2016, 8:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard J. Thonert Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lonny Hodges, May 18, 2016
Appellant-Defendant, Court of Appeals Case No.
43A03-1507-CR-843
v. Interlocutory Appeal from the
Kosciusko Circuit Court
State of Indiana, The Honorable Michael W. Reed,
Appellee-Plaintiff Judge
Trial Court Cause No.
43C01-1403-FC-176
Crone, Judge.
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Case Summary
[1] While on probation for other crimes, Lonny Hodges was charged with class C
felony possessing chemical reagents or precursors with intent to manufacture a
controlled substance, and class D felony possession of methamphetamine. The
evidence supporting these charges was discovered during a warrantless search
of a garage on Hodges’s property. Hodges filed a motion to suppress the
evidence, arguing that the warrantless and suspicionless search violated his
constitutional rights pursuant to both the Fourth Amendment to the United
States Constitution and Article 1, Section 11 of the Indiana Constitution. The
trial court denied the motion. The trial court certified its decision at Hodges’s
request, and we accepted jurisdiction of this interlocutory appeal. Finding no
constitutional violation, we affirm the denial of the motion to suppress.
Facts and Procedural History 1
[2] Hodges was convicted of certain unrelated crimes and, as part of his sentences,
began serving probation on December 31, 2013. On that date, Hodges met with
his probation officer, Rene Osborn, and reviewed the terms and conditions of
his probation with her. He signed an acknowledgement of the conditions of his
probation which provides in relevant part: “You waive your right against
search and seizure, and shall permit a Probation Officer, or any law
enforcement officer acting on a Probation Officer’s behalf, to search your
1
We held oral argument on April 19, 2016, in Indianapolis. We commend counsel for the quality of their
advocacy.
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person, residence, motor vehicle, or any location where your personal property
may be found, to insure compliance with probation.” Appellant’s App. at 12. 2
Just above Hodges’s signature, the document reads:
I have read the foregoing Order of Court Specifying Conditions
of Probation and Additional Conditions of Probation and have
had them explained to me and by my signature, acknowledge
receiving a copy of this document and agree to comply with the
conditions of probation set forth above. I understand I have a
right to request the Court for modification of any of my
conditions if I can show just cause therefor.
Id. at 13.
[3] Prior to Hodges’s probationary period, around late springtime 2013, Indiana
State Police Senior Trooper Brandon McBrier conducted a traffic stop of an
individual named Michael Meade. Meade identified himself as Hodges’s
brother-in-law and informed Trooper McBrier that Hodges had been
manufacturing methamphetamine in a garage located on Hodges’s property in
Mentone. Meade described the location of Hodges’s property to Trooper
McBrier and described the property as consisting of a trailer with a detached
garage. That summer, Trooper McBrier spoke to Sergeant Matt Rapp of the
2
The State acknowledges that although the probationary term at issue here relates to a conviction entered on
trial court cause number 43D03-1212-FD-766, the signed acknowledgement of the conditions of probation
offered and admitted into evidence relates to a conviction entered on trial court cause number 43D03-1307-
FD-474. The sentence on that conviction was ordered to be served consecutive to the sentence imposed in
trial court cause number 43D03-1212-FD-766. While it was not specifically offered into evidence, the trial
court took judicial notice of the conditions of probation document in 43D03-1212-FD-766. Tr. at 89.
Hodges makes no claim that the content of that document materially differs from the document admitted into
evidence.
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Kosciusko County Drug Task Force, who confirmed that the Task Force was
aware of information that indicated that Hodges was manufacturing
methamphetamine. Then, during the fall of 2013, Trooper McBrier conducted
a traffic stop of a female driver who told him that Hodges was a
methamphetamine “cook.” Tr. at 32.
[4] Sometime in February 2014, Trooper McBrier ran a computer search of
pseudoephedrine and ephedrine purchases and discovered that between 2007
and February 2014, Hodges made approximately sixty-six purchases. Hodges’s
wife made sixty-three purchases during the same time period. Trooper
McBrier believed that the consistent pattern of purchases was indicative of
individuals who are buying the drug to manufacture methamphetamine.
[5] Trooper McBrier subsequently learned that Hodges was on probation, so he
spoke to Hodges’s probation officer, Osborn, about the information that he had
gathered about Hodges. Osborn decided that she wanted to visit Hodges at his
home to check his compliance with the probation conditions. She asked
Trooper McBrier to accompany her due to his experience with the hazardous
chemicals used to manufacture methamphetamine, and they decided that the
home visit would occur on February 27, 2014. However, when Hodges
appeared a day early for his probation appointment on February 26, Osborn
decided to conduct the home visit with Hodges right after the appointment, and
she contacted Trooper McBrier. Osborn required Hodges to submit to a drug
test, and then she, Trooper McBrier, and Hodges proceeded to the address in
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Mentone that Hodges had provided to probation as his home address.
Appellant’s App. at 11.
[6] When they arrived at Hodges’s property, Hodges informed Osborn and Trooper
McBrier that his home had burned down and that only the detached garage was
left. He stated that he was actually living in his in-laws’ home, which was
approximately 100 yards away from the garage. Trooper McBrier noticed that
snow had been removed from the drive into the garage. Osborn told Hodges
that she wanted to search the garage, and Hodges opened the door. Trooper
McBrier and Osborn entered the garage and searched it. They found a twelve-
gauge shotgun and several clumps of a white crystal-like substance, as well as
numerous chemicals, precursors, and other items used to manufacture
methamphetamine. Osborn later took Hodges to his in-laws’ residence and
searched his bedroom and a vehicle, but found nothing noteworthy.
[7] On March 7, 2014, the State charged Hodges with class C felony possessing
chemical reagents or precursors with intent to manufacture a controlled
substance, and class D felony possession of methamphetamine. Hodges filed a
motion to suppress the evidence obtained during the search of his garage,
arguing that the warrantless and suspicionless search violated his rights under
the Fourth Amendment to the United States Constitution and Article 1, Section
11 of the Indiana Constitution. Following a hearing, the trial court entered its
findings of fact and conclusions thereon denying the motion to suppress. This
interlocutory appeal ensued.
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Discussion and Decision
[8] “When reviewing a trial court’s denial of a defendant’s motion to suppress, we
view conflicting factual evidence in the light most favorable to the ruling but we
will also consider substantial and uncontested evidence favorable to the
defendant.” Wertz v. State, 41 N.E.3d 276, 279 (Ind. Ct. App. 2015), trans.
denied. However, the constitutionality of a search or seizure is a question of
law, which we review de novo. Id.
[9] “Both the Fourth Amendment to the United States Constitution and Article [1],
Section 11 of the Indiana Constitution require in general that searches should
be conducted pursuant to a warrant supported by probable cause.” State v.
Schlechty, 926 N.E.2d 1, 3 (Ind. 2010) (footnotes omitted), cert. denied (2011). 3
“And both this jurisdiction and the federal courts have recognized various
exceptions to the warrant requirement.” Id. “When a search is conducted
without a warrant, the State has the burden of proving that an exception to the
warrant requirement existed at the time of the search.” Sugg v. State, 991
N.E.2d 601, 607 (Ind. Ct. App. 2013), trans. denied. With regard to the Fourth
Amendment, our supreme court in Schlechty recognized that “a warrantless
search may be justified on the basis of reasonable suspicion to believe that the
3
The Fourth Amendment to the United States Constitution provides, “The right of people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause ….” Article 1, Section 11 of the Indiana Constitution
provides, “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable
search and seizure, shall not be violated; and no warrant shall issue, but upon probable cause ….”
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probationer has engaged in criminal activity and that a search condition is one
of the terms of probation.” 926 N.E.2d at 6 (citing United States v. Knights, 534
U.S. 112, 122 (2001)).
[10] In the current case, Hodges asserts that the warrantless search of his garage was
unconstitutional because it was not based upon reasonable suspicion that he
had violated his probation or was engaged in criminal activity and also because
the search condition contained in the rules of his probation is invalid. The State
maintains that the search complied with constitutional dictates and that the
need for reasonable suspicion was obviated because Hodges waived his rights as
to search and seizure and agreed, by virtue of the terms and conditions of his
probation, to warrantless and suspicionless searches of his property. Although
Hodges’s motion to suppress alleged that the search violated both the Fourth
Amendment and Article 1, Section 11, he appears to have abandoned his
Fourth Amendment challenge on appeal and asserts only that the search
violated Article 1, Section 11. Thus, we address the arguments presented under
our state constitution.
The search of the garage did not violate Article 1, Section 11
of the Indiana Constitution.
Section 1 – Reasonable suspicion is not required for probation
searches conducted pursuant to a valid search condition.
[11] We first address Hodges’s claim that the search of his garage was
unconstitutional because it was not based upon reasonable suspicion. In State v.
Vanderkolk, 32 N.E.3d 775 (Ind. 2015), a Fourth Amendment case, our supreme
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court very broadly held that “Indiana probationers and community corrections
participants who have consented or been clearly informed that the conditions of
their probation or community corrections program unambiguously authorize
warrantless and suspicionless searches, may thereafter be subject to such
searches during the period of their probationary or community corrections
status.” Id. at 779. The Vanderkolk court specifically distinguished its prior
decision in Schlechty, also a Fourth Amendment probation search case, stating
that although “we noted that reasonable suspicion existed” in Schlechty, “we did
not hold that reasonable suspicion was an essential prerequisite to a search of a
probationer whose conditions of probation contained a valid search condition.”
Id. The crux of the Vanderkolk holding is that a probation search need not be
supported by reasonable suspicion and may be predicated solely upon a valid
search condition contained in the conditions of probation. Thus, a
probationer’s argument that a probation search lacked reasonable suspicion is
unequivocally no longer a legitimate objection under the Fourth Amendment
and Vanderkolk. See State v. Terrell, 40 N.E.3d 501, 505 (Ind. Ct. App. 2015).
Instead, only the method of execution, and not the scope, of the search would
be subject to a reasonableness challenge. Id. 4
[12] Hodges claims that despite our supreme court’s broad holding in Vanderkolk,
reasonable suspicion is still required to support a warrantless probation search
4
Hodges makes no claim that the nondestructive daytime search was conducted in an unreasonable manner.
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under the Indiana Constitution. While the language of Article 1, Section 11 is
virtually identical to its Fourth Amendment counterpart, our supreme court has
“made an explicit point to interpret and apply Section 11 independently from
federal Fourth Amendment jurisprudence.” Mitchell v. State, 745 N.E.2d 775,
786 (Ind. 2001). Generally, under Indiana law, the reasonableness of a search
or seizure turns on the “totality of the circumstances” and a balance of: (1) the
degree of concern, suspicion, or knowledge that a violation has occurred; (2) the
degree of intrusion the method of the search imposes on the citizen’s ordinary
activities; and (3) the extent of law enforcement needs. Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005).
[13] However, in light of “Vanderkolk’s expansive endorsement of warrantless and
suspicionless probation searches under the Fourth Amendment” we conclude
that a separate Litchfield analysis is not required here. Cf. Terrell, 40 N.E.3d at
506 (stating that it was “questionable” whether a separate Litchfield analysis is
required in considering the reasonableness of probation searches in light of
Vanderkolk holding). Indeed, we agree with the State that such separate analysis
is unnecessary, as it “would have made little sense for our Supreme Court to
pen such a broad holding if the Court had simply intended to continue a
requirement of prior reasonable suspicion for any probation-related search.”
Appellee’s Br. at 18. Because lack of reasonable suspicion is no longer a
legitimate objection to the constitutionality of Indiana probation searches
pursuant to Vanderkolk, we turn to Hodges’s remaining assertion regarding the
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validity of the warrantless search provision contained in his conditions of
probation.
Section 2 – The search condition clearly expressed and
unambiguously informed Hodges that he could be subject to
warrantless and suspicionless searches.
[14] Hodges contends that the warrantless search provision contained in his
conditions of probation is invalid because it did not specifically advise him that
he was waiving his right to search and seizure under the Indiana Constitution
or that he was specifically consenting to warrantless and suspicionless searches. 5
The Vanderkolk court did not specify what a valid search condition must look
like under the Fourth Amendment or the Indiana Constitution, but merely
stated that Indiana probationers must be “unambiguously informed of a clearly
expressed search condition in the conditions of their release to probation.” 32
N.E.3d at 779. 6
[15] The U.S. Supreme Court has concluded that a probation order providing that
the probationer would “[s]ubmit his … person, property, place or residence,
vehicle, personal effects, to search at anytime, with or without a search warrant,
5
Without citation to authority, Hodges also urges that the search term here is unconstitutionally vague
because it fails to identify a specific residence, vehicle, or other specific locations where his personal property
would be located. This argument is unpersuasive.
6
The Vanderkolk court did imply that the waiver stating “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”
would have been valid had it not been “fatally compromised” by the waiver’s closing statement conditioning
any such searches upon the existence of probable cause. 32 N.E.3d at 778.
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warrant of arrest or reasonable cause by any probation officer or law
enforcement officer” constituted a “clearly expressed” search condition that
“unambiguously informed” the defendant who signed the order submitting to
the condition. See Knights, 534 U.S. at 119. In Terrell, we implied that much
less substantial language providing that the probationer waived “any and all
rights as to search and seizure under the laws and Constitution of both the
United States and the State of Indiana” and agreed to submit to “reasonable
search and seizure” of his property or residence at any time by any probation
officer, or any accompanying law enforcement officer, was a valid and clearly
expressed search condition. See Terrell, 40 N.E.3d at 503, 505.
[16] The search condition here provided: “You waive your right against search and
seizure, and shall permit a Probation Officer, or any law enforcement officer
acting on a Probation Officer’s behalf, to search your person, residence, motor
vehicle, or any location where your personal property may be found, to insure
compliance with probation.” Appellant’s App. at 12. First, because Hodges
signed the rules of probation submitting to the foregoing search condition, we
conclude that he was “unambiguously” aware of it. See, e.g., Samson v.
California, 547 U.S. 843, 852 (2006) (looking to prior decision in Knights and
noting that probationer who signed an order submitting to the probation search
condition was “unambiguously” aware of it). Moreover, we believe that the
language here, albeit somewhat minimal, was sufficient to constitute a clearly
expressed search condition, as it specifically advised Hodges that he was
waiving his “right against search and seizure.” Appellant’s App. at 12.
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Although Hodges posits that this mere reference to the right against search and
seizure did not clearly express to him exactly what constitutional protections he
was giving up when consenting to the rules of probation, we agree with the
State that it would make little sense to require a boilerplate reference to our
federal or state constitutions in order for the search condition to be considered
valid. In light of our supreme court’s expansive holding in Vanderkolk, and its
observation that “the willingness of judicial officers to grant conditional release
is likely to be impaired if supervision is uncertain or difficult,” 32 N.E.3d at
779, we think that the language used here was within constitutional parameters.
[17] In sum, the search of Hodges’s garage did not violate Article 1, Section 11 of
the Indiana Constitution. Accordingly, the trial court properly denied Hodges’s
motion to suppress the evidence obtained as a result of the search. We affirm
the trial court’s order.
[18] Affirmed.
Bailey, J., concurs.
Vaidik, C.J., concurs in result with opinion.
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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard J. Thonert Gregory F. Zoeller
Fort Wayne, Indiana Attorney General
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lonny Hodges, May 18, 2016
Appellant-Defendant, Court of Appeals Case No.
43A03-1507-CR-843
v. Appeal from the Kosciusko Circuit
Court
State of Indiana, The Honorable Michael Reed
Appellee-Plaintiff Trial Court Cause No.
43C01-1403-FC-176
Vaidik, Chief Judge, concurring in result.
[19] I agree with the result reached by the majority, but I do not agree that State v.
Vanderkolk, 32 N.E.3d 775 (Ind. 2015), bars all probationers who are subject to
search conditions from raising lack-of-reasonable-suspicion challenges to
probation searches. I do not believe that is what our Supreme Court held in
Vanderkolk, and extending Vanderkolk to apply to all probationers is inconsistent
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with United States Supreme Court precedent. However, because reasonable
suspicion existed to search Hodges’ garage, I respectfully concur in result.
[20] In Vanderkolk, the Court addressed a search of the residence of an offender
“who was on home detention under Community Corrections supervision[.]”
32 N.E.3d at 775. The opinion did not state whether the offender had been
directly placed in a community-corrections program, see Ind. Code §§ 35-38-2.6-
3 and -4.5, or instead was on probation and was simply being supervised by a
community-corrections program, see Ind. Code §§ 35-38-2.5-5. Rather, the
Court made clear that the precise legal basis for the placement was irrelevant
and that the critical fact was that the offender was on home detention:
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
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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 [chapter] 35-38-2 et seq. and rules governing the direct
placement in a community corrections program are governed by
Indiana Code [chapter] 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.”).
Vanderkolk, 32 N.E.3d at 776-77 (emphases added).
[21] Here, the majority relies on a later passage from Vanderkolk, in which the Court
did not specifically mention the home-detention aspect of the case:
We therefore hold that Indiana probationers and community
corrections participants, who have consented or been clearly
informed that the conditions of their probation or community
corrections program unambiguously authorize warrantless and
suspicionless searches, may thereafter be subject to such searches
during the period of their probationary or community corrections
status.
Id. at 779. However, it is my opinion that the Court’s introductory home-
detention discussion, quoted above, served to limit its holding to searches of
probationers (and community-corrections participants) who have been placed on
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home detention. If that was not the Court’s intention, then the in-depth
discussion of home detention was pointless.
[22] This limited reading of Vanderkolk is consistent with the United States Supreme
Court’s decisions in this area. In 1987, the Court described probation’s place
on the “continuum” of sentencing options:
Probation is simply one point (or, more accurately, one set of
points) on a continuum of possible punishments ranging from
solitary confinement in a maximum-security facility to a few
hours of mandatory community service. A number of different
options lie between those extremes, including confinement in a
medium- or minimum-security facility, work-release programs,
“halfway houses,” and probation—which can itself be more or
less confining depending upon the number and severity of
restrictions imposed.
Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). In Griffin, the Court upheld a
search that was conducted pursuant to a state regulation that permitted “any
probation officer to search a probationer’s home without a warrant as long as
his supervisor approves and as long as there are ‘reasonable grounds’ to believe the
presence of contraband[.]” Id. at 870 (emphasis added).
[23] Fourteen years after Griffin, in United States v. Knights, the Court addressed the
search of the apartment of an offender whose conditions of probation purported
to allow searches “with or without . . . reasonable cause” (i.e., suspicionless
searches). 534 U.S. 112, 114 (2001). In upholding the search in question, the
Court looked at the totality of the circumstances, treating the seemingly
limitless probation search condition as merely one “salient circumstance.” Id.
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at 118. The Court did not say that the search condition, standing alone, was
conclusive. To the contrary, notwithstanding the fact that the search condition
specifically provided for suspicionless searches, the Court expressly based its
holding on the fact that the officer had reasonable suspicion. Id. at 122 (“We
therefore hold that the warrantless search of Knights, supported by reasonable
suspicion and authorized by a condition of probation, was reasonable within
the meaning of the Fourth Amendment.”).
[24] It is true that the Court most recently held that parolees in California, who are
subject to suspicionless searches pursuant to state statute, cannot challenge
parole searches based on lack of reasonable suspicion. Samson v. California, 547
U.S. 843 (2006). In doing so, however, the Court made a point to distinguish
between parolees and probationers:
As we noted in Knights, parolees are on the “continuum” of state-
imposed punishments. On this continuum, parolees have fewer
expectations of privacy than probationers, because parole is more akin to
imprisonment than probation is to imprisonment. As this Court has
pointed out, parole is an established variation on imprisonment
of convicted criminals. The essence of parole is release from
prison, before the completion of sentence, on the condition that
the prisoner abide by certain rules during the balance of the
sentence. In most cases, the State is willing to extend parole only
because it is able to condition it upon compliance with certain
requirements. See also United States v. Reyes, 283 F.3d 446, 461
(C.A.2 2002) (“[F]ederal supervised release, in contrast to
probation, is meted out in addition to, not in lieu of,
incarceration”); United States v. Cardona, 903 F.2d 60, 63 (C.A.1
1990) (“[O]n the Court’s continuum of possible punishments,
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parole is the stronger medicine; ergo, parolees enjoy even less of the
average citizen’s absolute liberty than do probationers”).
Id. at 850 (emphasis added, citations omitted, formatting altered).
[25] In Vanderkolk, our Supreme Court extended Samson to Indiana probationers
(and community-corrections participants) who have been placed on home
detention. Here, the majority understood Vanderkolk to take a much more
significant step and extend Samson to all probationers. I do not believe
Vanderkolk extends so far.
[26] Applying Samson to probationers on home detention made sense, since a
probationer on home detention is just as restricted as some parolees, and even
more restricted than other parolees. An offender who is on home detention is in
many ways a prisoner, and a search of his property is much like a search of a
prison cell. But as the United States Supreme Court recognized in Griffin, there
are different levels of probation that constitute different points on the
continuum between solitary confinement in a maximum-security prison and a
few hours of community service. 483 U.S. at 874. Probation can be “more or
less confining depending upon the number and severity of restrictions
imposed.” Id.
[27] Extending Vanderkolk to all probationers would render these differences
meaningless. A first-time offender on unsupervised probation for Class C
misdemeanor driving without a license could be subjected to suspicionless
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searches 7 just the same as a person on intensive, home-detention probation
following a lengthy prison term for armed robbery. The United States Supreme
Court did not sanction such a result in Samson, the Indiana Supreme Court did
not sanction such a result in Vanderkolk, and this Court should not sanction
such a result here.
[28] Instead, we should simply affirm the trial court’s well-reasoned conclusion that
the search of Hodges’ garage was justified by a reasonable suspicion that
Hodges was engaged in criminal activity. Hodges was not on home detention
like the offender in Vanderkolk, nor was he on some other form of highly
restrictive probation. He was on standard probation for a non-violent, non-
drug-related crime. Therefore, I would hold that (1) Hodges could be subjected
to a probation search only upon reasonable suspicion of criminal activity and
(2) reasonable suspicion existed in this case.
7
Upon questioning at oral argument in this case, the deputy attorney general also read Vanderkolk to extend
to all probationers, including those on unsupervised probation.
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