James E. Jarman v. State of Indiana , 114 N.E.3d 911 ( 2018 )

FILED
Nov 30 2018, 10:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General
Lafayette, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Jarman, November 30, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1034
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D01-1703-F4-16
Vaidik, Chief Judge.
Case Summary
[1] James E. Jarman appeals his convictions for possession of methamphetamine,
dealing in a synthetic drug or synthetic drug lookalike substance, and
possession of paraphernalia. The convictions arose from a suspicionless search
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of Jarman, who was on community corrections for a prior conviction. The
Indiana Supreme Court has held that suspicionless searches of a community-
corrections participant are permissible under the Fourth Amendment to the
U.S. Constitution, but only if the conditions of the program unambiguously
authorize such searches. Here, Jarman signed a waiver consenting to searches
“without a warrant and without probable cause.” Jarman contends that this
language did not unambiguously authorize searches with no suspicion at all and
that the suspicionless search of his person therefore violated the Fourth
Amendment. Given the well-established distinction between “probable cause”
and the lesser degrees of suspicion sometimes required by the Fourth
Amendment, we agree with Jarman and reverse his convictions.
Facts and Procedural History
[2] In March 2017, Jarman was under the supervision of Tippecanoe County
Community Corrections in connection with a 2015 conviction for felony
domestic battery of his ex-wife. On the morning of March 16, two community-
corrections officers went to Jarman’s house after hearing from an anonymous
source that Jarman’s ex-wife “was possibly living at the residence,” that Jarman
had purchased alcohol and had been drinking, and that Jarman “possibly had
been abusing his [A]dderall medication.” Tr. p. 10.
[3] At the house, the officers had Jarman do a breathalyzer test, which he passed.
When asked if there was anyone else in the house, Jarman said that a male
friend of his was there, but the officers conducted a “safety sweep” of the house
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and found Jarman’s ex-wife in the attic. Id. at 8. One of the officers handcuffed
Jarman and “conducted a pat down on him.” Id. The officer found “a knotted
baggie containing an unknown white powdery substance.” Id. at 12. Jarman
said that it was “joint medication that he uses for joint pain.” Id. at 13. The
officer asked where the bottle for the medication was, and Jarman said that it
was in a locked cabinet in the basement. Jarman gave the officer a key to the
cabinet, and the officer proceeded to find methamphetamine, several bags of a
green, leafy substance (that was not marijuana), a synthetic urine kit, two
handwritten ledgers, stamp baggies, a cut straw, a scale, and a glass smoking
device. Id. at 14-16.
[4] The State charged Jarman with dealing and possession of methamphetamine,
dealing and possession of a synthetic drug or synthetic drug lookalike
substance, and possession of paraphernalia. The case proceeded to a bench
trial, where Jarman promptly moved to suppress all evidence obtained after the
warrantless search of his person, arguing that the search violated the Fourth
Amendment. The State responded that the search of Jarman was permissible
because he “waived his [F]ourth [A]mendment rights” as a condition of
admission to community corrections. Id. at 9. The State introduced a copy of
the “Community Correction Policy Concerning Search and Seizures – Waiver
of Fourth Amendment Rights” that Jarman had signed, which provided, in
part:
In consideration of the opportunity to participate in a
Community Corrections program rather than serve my sentence
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through the Department of Correction or other secure or more
restrictive environment, I acknowledge and agree that I hereby
waive my rights concerning searches and seizures under the
Fourth and Fourteenth Amendments of the United States
Constitution and under Article 1, §11 of the Indiana
Constitution. Specifically, I hereby consent to allow employees
of Community Corrections or law enforcement officers to search
my person or property without a warrant and without probable
cause.
Ex. 21. The trial court took all matters under advisement and then issued an
order denying Jarman’s motion to suppress and finding him guilty of all charges
except dealing in methamphetamine. The court later merged the synthetic-drug
possession count into the more serious synthetic-drug dealing count and
imposed a total sentence of four years, with two of those years to be served with
Tippecanoe County Community Corrections.
[5] Jarman now appeals.
Discussion and Decision
[6] Jarman contends that the trial court should have granted his motion to suppress
and found him not guilty on all charges. He renews his argument that the
search of his person violated the Fourth Amendment, which provides:
The right of the 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, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
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While Jarman is the party appealing, whether a search was constitutional is a
question of law we review de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.
2013). And because the search here was done without a warrant, the State
bears the burden of convincing us it fell within an exception to the warrant
requirement. See id.
[7] Jarman makes two arguments in his brief: (1) that the officers who searched
him did so without reasonable suspicion that he was engaged in illegal behavior
and (2) that his consent to searches without probable cause did not also
constitute consent to suspicionless searches. The State offers two responses,
both based on Jarman’s consent to searches “without a warrant and without
probable cause.” First, the State contends that Jarman, by giving that consent,
“gave officers probable cause (and a warrant) to search him and his property”
and “also necessarily gave them reasonable suspicion because that ‘is a less
demanding standard than probable cause.’” Appellee’s Br. p. 7 (quoting State v.
Schlechty, 926 N.E.2d 1, 7 (Ind. 2010), reh’g denied). The State cites no authority
for the novel proposition that Jarman “gave” officers probable cause (and
therefore the lesser-included reasonable suspicion) by signing the waiver, and
we are not aware of any. By signing the waiver, Jarman did not agree that
officers had probable cause to search him; rather, he agreed that officers did not
need probable cause to search him.1
1
The State does not argue that the search of Jarman was justified by actual suspicion that he was engaged in
some illegal activity, notwithstanding the fact that his ex-wife—the victim of his underlying domestic-battery
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[8] No matter, the State says: Jarman’s waiver of Fourth Amendment rights was
complete, not partial, meaning that he could be searched with no suspicion at
all. The State cites State v. Vanderkolk, where our Supreme Court held that
suspicionless searches of a community-corrections participant are permissible if
the participant has “consented or been clearly informed that the conditions of
their probation or community corrections program unambiguously authorize”
such searches. 32 N.E.3d 775, 779 (Ind. 2015). In arguing that Jarman waived
all Fourth Amendment rights and consented to suspicionless searches, the State
relies on the following passage in the waiver: “I hereby waive my rights
concerning searches and seizures under the Fourth and Fourteenth
Amendments of the United States Constitution and under Article 1, §11 of the
Indiana Constitution.” Read in isolation, that language would certainly seem
to support the State’s argument. However, that seemingly complete waiver
must be read in light of the next sentence: “Specifically, I hereby consent to
allow employees of Community Corrections or law enforcement officers to
search my person or property without a warrant and without probable cause.”
(Emphasis added.) The use of the word “specifically” means that this second
sentence defined the actual scope of Jarman’s waiver (and consent) made in the
first sentence. Under Vanderkolk, then, the question we must answer is whether
a waiver that allows searches “without a warrant and without probable cause”
offense—had been found hiding in the attic. The State argues only that Jarman “gave” officers reasonable
suspicion by signing the waiver.
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also “unambiguously authorizes” suspicionless searches. We hold that it does
not.
[9] As already noted, the State itself acknowledges that “reasonable suspicion” is
“a less demanding standard than probable cause.” Appellee’s Br. p. 7. And
while not all searches need to be supported by probable cause, some degree of
suspicion is often required. As the U.S. Supreme Court explained in United
States v. Knights, a case involving a search of the apartment of a person on
probation:
The degree of individualized suspicion required of a search is a
determination of when there is a sufficiently high probability that
criminal conduct is occurring to make the intrusion on the
individual’s privacy interest reasonable. Although the Fourth
Amendment ordinarily requires the degree of probability
embodied in the term “probable cause,” a lesser degree satisfies
the Constitution when the balance of governmental and private
interests makes such a standard reasonable.
534 U.S. 112, 121 (2001). Given this well-established distinction between
“probable cause” and lesser degrees of suspicion, the statement “I agree to a
search without probable cause” does not unambiguously mean “I agree to a
search without reasonable suspicion.” If the State wanted Jarman to be subject
to suspicionless searches as a condition of entering community corrections, it
should have included in its waiver form language like “without suspicion,”
“without reasonable suspicion,” “without reasonable cause,” or “without
cause.” See, e.g., Samson v. California, 547 U.S. 843 (2006) (holding that
suspicionless search did not violate Fourth Amendment because it was
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conducted pursuant to parole statute allowing searches “with or without a
search warrant and with or without cause” (emphasis added)). Because the
waiver did not include any such language, we reverse.2
[10] Reversed.
Riley, J., and Kirsch, J., concur.
2
In a single sentence in the last paragraph of its brief, the State cites the U.S. Supreme Court’s holding that
when police lawfully arrest a suspect, “a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but it is also a reasonable search under that Amendment.” United
States v. Robinson, 414 U.S. 218, 235 (1973) (formatting altered). To the extent the State meant to suggest that
the search of Jarman fell within the search-incident-to-arrest exception to the warrant requirement, it waived
the issue by failing to develop a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (argument section of
appellant’s brief “must contain the contentions of the appellant on the issues presented, supported by cogent
reasoning”). In the sentence following the citation to Robinson, the State returns to its argument that Jarman
“waived” the protection of the Fourth Amendment in order “to participate in community corrections.”
Appellee’s Br. p. 8.
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