State of Indiana v. Braeden Terrell ( 2015 )

Jul 10 2015, 8:16 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Glen E. Koch II
Attorney General of Indiana Boren Oliver & Coffey, LLP
Martinsville, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, July 10, 2015
Appellant-Plaintiff, Court of Appeals Case No.
55A01-1501-CR-9
v. Appeal from the Morgan Circuit
Court
Braeden Terrell, The Honorable Matthew G. Hanson,
Appellee-Defendant Judge
Case No. 55C01-1410-CM-1502
Crone, Judge.
Case Summary
[1] Braeden Terrell was placed on probation and was ordered not to possess or
consume alcoholic beverages and not to possess firearms as conditions of his
probation. As another condition of his probation, he waived “any and all” of
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his search and seizure rights under state and federal law and agreed to submit to
reasonable searches of his property or residence at any time by a probation
officer. State’s Ex. 2. During a home visit, a probation officer found alcoholic
beverages in Terrell’s kitchen and searched his nightstand for firearms and
found marijuana and paraphernalia.
[2] The State charged Terrell with class B misdemeanor marijuana possession and
class A misdemeanor paraphernalia possession. Terrell filed a motion to
suppress the contraband, arguing that the search of the nightstand was
unconstitutional under the Fourth Amendment of the U.S. Constitution and
Article 1, Section 11 of the Indiana Constitution. The trial court granted the
motion, finding that the search of the nightstand “went well beyond the scope
of the reasonable searches up to that point.” Appellant’s App. at 15.
[3] The State appeals, claiming that the trial court erred in granting Terrell’s
motion to suppress. We agree. With respect to the Fourth Amendment, Terrell
waived his search and seizure rights and agreed to submit to searches of his
property and residence, and the search of the nightstand for firearms was not
unreasonable. And as for Article 1, Section 11, the search was reasonable
under the totality of the circumstances. Therefore, we reverse and remand.
Facts and Procedural History
[4] In August 2014, Terrell was convicted in Hendricks County of class A
misdemeanor operating a vehicle while intoxicated with endangerment and
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placed on probation. On August 12, Terrell signed an order with the following
probation conditions:
7. You shall not leave the State of Indiana and agree to waive
extradition to the State of Indiana and to appear before the Court
when so ordered by the Court.
….
9. You shall permit the Probation Officer and any Law Enforcement
Officer assisting the Probation Officer to enter your residence and to
ask reasonable questions about your activities. You shall sign a waiver
to the search of your person or property when requested by the
Probation Officer.
10. You shall not consume, or possess on your person or in your
residence, any controlled substance (illegal drug) or drug
paraphernalia, except as prescribed to you by a licensed physician.
You shall submit to alcohol and drug tests when requested by the
Probation Department or any Law Enforcement Officer.…
11. You shall not possess any firearm, destructive device, or
dangerous weapon on your person, in your residence, or in your
vehicle.
….
You shall not consume, or possess on your person or in your
residence, any alcoholic beverages, or enter into any establishment
where alcoholic beverages are the primary product for sale. This
includes all liquor stores, bars, taverns, and pubs.
You shall be evaluated by a DMHA Certified substance abuse
program within forty-five (45) days of today. You shall successfully
complete and pay for any program referred by your Probation Officer.
State’s Ex. A.
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[5] On August 27, Terrell signed a form entitled “Fourth Amendment Waiver of
Rights as Condition of Probation,” which reads in pertinent part as follows:
Probationer specifically waives any and all rights as to search and
seizure under the laws and Constitution of both the United States and
the State of Indiana during his/her period of probation. Probationer
agrees to submit to reasonable search and seizure of his/her person,
property, vehicle, residence, and any other property under his/her
control, at any time, by any Probation Officer, and any Law
Enforcement Officer accompanying the Probation Officer.
….
Probationer is informed of his/her Fourth Amendment rights and
hereby knowingly and intentionally waives those rights to the extent
provided in this waiver as a condition of probation.
State’s Ex. 2. 1
[6] Also on that date, Terrell admitted to his probation officer, Cheryl Koch, that
he had consumed alcohol four days earlier at a bachelor party in Tennessee that
he had received court permission to attend. Koch told him that she would not
file a probation violation notice because he had not yet received substance
abuse treatment.
1
The form also provides, “Probationer waives his/her Sixth Amendment right to consult with an attorney
prior to signing this waiver of rights to search.” State’s Ex. 2. Terrell objected to this provision at the
suppression hearing, but the trial court did not address the issue in its order. In his appellate brief, Terrell
asserts that the Sixth Amendment of the U.S. Constitution and Article 1, Section 13 of the Indiana
Constitution “guarantee the right of a person to have an attorney during criminal proceedings” and that
“[i]nsofar as [he] was ordered to attend the probation meeting and ordered to sign the waiver without
counsel, it violated his aforementioned rights.” Appellee’s Br. at 8 n.1. Other than the constitutional clauses
themselves, Terrell cites no authority for this assertion.
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[7] In supervising Terrell’s probation, Koch monitored his Facebook posts. On
September 28, she saw a post indicating that Terrell was at a bar in downtown
Indianapolis. 2 Based on these alcohol-related issues, Koch decided to conduct a
home visit “[t]o see if [Terrell] was in compliance with his rules[.]” Tr. at 23.
[8] Around 1:00 p.m. on October 2, Koch arrived at Terrell’s home in Martinsville
with probation officer Andrew Lillpop. Terrell allowed the officers inside.
Terrell’s girlfriend and a housecleaner were also in the home. Koch saw an
almost empty whiskey bottle on the kitchen counter. She opened the
refrigerator and found a case of beer inside. She also saw bottles of alcohol and
cups beside the refrigerator.
[9] Lillpop administered a portable breath test, which indicated that Terrell had not
consumed alcohol. Lillpop then asked Terrell if “there were any dangerous
weapons in the residence[.]” Id. at 34. Terrell said that “there were some in his
safe […] in his bedroom.” Id. at 35. Lillpop asked Terrell to show him the safe.
According to Lillpop,
[Terrell] took me back into the back bedroom I open[ed] the door or he
open[ed] the door and he showed me where the guns were and the safe
was locked there was an empty one there was one on top in a pouch
and he had told me that that one wasn’t working so I pulled that one
out set it on the bed had Mr. Terrell go back into the front room so
that I could look since I was looking I didn’t want them standing over
my shoulder for safety purposes. Um and then I looked in the
nightstand and found marijuana and then at that time I immediately
2
The record does not support the State’s assertion that Terrell posted a photograph of himself inside the bar.
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stopped the search left the marijuana there in the nightstand and um I
called dispatch and Morgan County Sheriff’s department came out to
assist.
Id. at 36. Lillpop searched the nightstand because it was a “common[]place to
hide a firearm[.]” Id. at 37. He also found marijuana paraphernalia in the
nightstand.
[10] The State charged Terrell with class A misdemeanor paraphernalia possession
and class B misdemeanor marijuana possession. Terrell filed a motion to
suppress “all items seized in this case because the search that preceded the
seizure was made without any suspicion that [he] possessed controlled
substances, and was simply an investigatory probation search, impermissible
under [Article 1, Section 11] of Indiana’s Constitution as well as the 4th
Amendment” of the U.S. Constitution. Appellant’s App. at 12. After a
hearing, the trial court issued an order granting Terrell’s motion to suppress,
finding that “the search of the dresser/nightstand revealing suspected marijuana
went well beyond the scope of the reasonable searches up to that point.” Id. at
15. The State now appeals.
Discussion and Decision
[11] “The State has the burden of demonstrating that the measures it used to seize
the information or evidence were constitutional.” State v. Augustine, 851 N.E.2d
1022, 1025 (Ind. Ct. App. 2006).
When appealing the grant of a motion to suppress, the State appeals
from a negative judgment and must show the trial court's ruling was
contrary to law. This Court will reverse a negative judgment only
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when the evidence is without conflict and all reasonable inferences
lead to a conclusion opposite that reached by the trial court. We
neither reweigh the evidence nor judge the credibility of the witnesses,
and we consider only the evidence most favorable to the judgment.
Id. (citations omitted). “[T]he ultimate determination of the constitutionality of
a search or seizure is a question of law that we consider de novo.” Carpenter v.
State, 18 N.E.3d 998, 1001 (Ind. 2014).
[12] “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.” Schlechty v.
State, 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. The State contends that Lillpop’s warrantless
search of Terrell’s nightstand did not violate either constitution. We address
each in turn.
Section 1 – The search of the nightstand did not violate
the Fourth Amendment of the U.S. Constitution.
[13] “The fundamental purpose of the Fourth Amendment is to protect the
legitimate expectations of privacy that citizens possess in their persons, their
3
See U.S. CONST. amend. IV (“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.”); IND. CONST. art. 1, § 11 (“The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and
no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the person or thing to be seized.”).
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homes, and their belongings.” Montgomery v. State, 904 N.E.2d 374, 377-78
(Ind. Ct. App. 2009), trans. denied. In Vanderkolk v. State, No. 79S04-1411-CR-
718, 2015 WL 3608834 (Ind. June 9, 2015), a Fourth Amendment case that was
decided after this appeal was fully briefed, the Indiana Supreme Court held that
probationers “who have consented or been clearly informed that the conditions
of their probation … unambiguously authorize warrantless and suspicionless
searches, may thereafter be subject to such searches during the period of their
probationary … status.” Id., slip op. at *4. Here, Terrell waived “any and all
rights as to search and seizure” under state and federal law and agreed to
submit to “reasonable search and seizure” of his property or residence at any
time by any probation officer. State’s Ex. 2. In his motion to suppress, Terrell
argued that the search of the nightstand was unconstitutional because it was not
based on suspicion that he possessed controlled substances. But under
Vanderkolk, this is no longer a valid objection to the search. The question before
us is simply whether the search was “reasonable.” See id. (waiver form);
Schlechty, 926 N.E.2d at 6 (“[A]ll government searches, whether or not
conducted pursuant to voluntary consent, must be ‘reasonable.’”).
[14] Depending on the terms of a probationer’s consent, in many cases only the
method of execution, and not the scope, of the search would be subject to a
reasonableness challenge. Cf. Schlechty, 926 N.E.2d at 6-7 (“For example the
Fourth Amendment would not condone the indiscriminate ransacking of a
probationer’s home at all hours, or the pumping of his or her stomach, simply
because a probation term included a search condition.”). The voluntariness of
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the consent could be considered questionable in light of a probationer’s
negligible bargaining power and the Hobson’s choice of either signing the
consent form or going to prison. 4 But unless and until our supreme court limits
Vanderkolk or further defines its parameters, we must conclude that where, as
here, a probationer has waived any and all of his search and seizure rights and
agreed to submit to searches of his property and residence at any time by a
probation officer, a nondestructive daytime search of the probationer’s
nightstand for firearms is not unreasonable under the Fourth Amendment.
Section 2 – The search of the nightstand did not violate
Article 1, Section 11 of the Indiana Constitution.
[15] The purpose of Article 1, Section 11 of the Indiana Constitution “is to protect
from unreasonable police activity those areas of life that Hoosiers regard as
private.” State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006). “The provision
must receive a liberal construction in its application to guarantee the people
against unreasonable search and seizure.” Id. at 340. Under the Indiana
Constitution, the legality of a search depends on whether government conduct
4
A Hobson’s choice is “an apparently free choice that is really no choice at all.” Gray v. State, 841 N.E.2d
1210, 1218 (Ind. Ct. App. 2006), trans. denied. In the civil context, a “‘standardized contract … imposed and
drafted by the party of superior bargaining strength [that] relegates to the subscribing party only the
opportunity to adhere to the contract or reject it’” is called an adhesion contract. Sanford v. Castleton Health
Care Ctr., LLC, 813 N.E.2d 411, 417 (Ind. Ct. App. 2004) (quoting Pigman v. Ameritech Pub., Inc., 641 N.E.2d
1026, 1035 (Ind. Ct. App. 1994)), trans. dismissed (2006). An adhesion contract is unconscionable and
therefore unenforceable if it is “such as no sensible man not under delusion, duress or in distress would make,
and such as no honest and fair man would accept.” Id. (citation, quotation marks, and alteration omitted).
One could argue that consent-to-search forms signed by probationers bear many similarities to
unconscionable adhesion contracts, but that concept thus far has no parallel in criminal law.
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was reasonable under the totality of the circumstances. Tuggle v. State, 9 N.E.3d
726, 735 (Ind. Ct. App. 2014), trans. denied.
[16] In prior cases, the Indiana Supreme Court has stated that the reasonableness of
a search “turns on 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 or seizure imposes on the citizen’s ordinary activities; and 3) the
extent of law enforcement needs.” Id. (citing Litchfield v. State, 824 N.E.2d 356,
359 (Ind. 2005)). “[T]here may well be other relevant considerations under the
circumstances.” Litchfield, 824 N.E.2d at 361. In light of Vanderkolk’s
expansive endorsement of warrantless and suspicionless probation searches
under the Fourth Amendment, it is questionable whether a separate Litchfield
analysis is required here. Unless and until our supreme court specifically says
otherwise, however, we shall continue to follow existing precedent and balance
the three Litchfield factors and other relevant considerations in determining the
reasonableness of probation searches under the Indiana Constitution.
[17] Regarding the first factor, Lillpop’s suspicion that a firearm might be in the
nightstand was purely conjectural, but Terrell had waived any and all of his
search and seizure rights and agreed to submit to searches of his property and
residence. As for the second factor, the degree of intrusion on Terrell’s ordinary
activities was substantial, but he was on probation and had agreed to submit to
the search as a condition of his probation. And finally, regarding the extent of
law enforcement needs, even Terrell concedes that “the courts have a high
degree of need to monitor probationers,” Appellee’s Br. at 16, and he cites no
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relevant authority for his assertion that Lillpop was obligated to stop searching
for firearms after he found a probation violation. When the factors are
balanced and Terrell’s consent to the search is taken into account, we conclude
that the search of the nightstand was not unreasonable under the totality of the
circumstances and therefore did not violate Article 1, Section 11 of the Indiana
Constitution. Consequently, we reverse the trial court’s grant of Terrell’s
motion to suppress and remand for further proceedings.
[18] Reversed and remanded.
Brown, J., and Pyle, J., concur.
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