Robert D. Rivard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 20 2019, 6:24 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Tyler G. Banks
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert D. Rivard, December 20, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1122
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Sarah K. Mullican,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D03-1603-F2-812
Altice, Judge.
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Case Summary
[1] Robert D. Rivard appeals the revocation of his probation, claiming that the
evidence seized from his residence by police was improperly admitted at the
revocation hearing because there was no reasonable suspicion to support a
warrantless search.
[2] We affirm.
Facts and Procedural History
[3] In 2016, Rivard pleaded guilty to Level 2 felony dealing in methamphetamine,
pursuant to a plea agreement. A portion of the plea agreement provided that
If the Defendant is sentenced to a term of probation, the
defendant agrees to waive his . . . constitutional rights under the
Fourth Amendment to the United States Constitution and Article
1, § 11 of the Indiana Constitution. The defendant waives these
constitutional rights as to his . . . person, vehicle, residence
cellular telephone(s), computer(s) and/or other electronic storage
or communication device(s). The defendant understands and agrees
that [the above] may be searched at any time, without notice, without
reasonable suspicion, without probable cause, or without a search
warrant. . . . . The defendant further understands and agrees that
any contraband or evidence of other criminal activity derived
from the search of the above listed property and/or items may be
introduced against him . . . at a probation revocation hearing
and/or criminal prosecution.
Appellant’s Appendix Vol. II at 78 (emphasis added).
[4] On October 18, 2016, the trial court sentenced Rivard to nineteen years of
incarceration with six years executed and thirteen years suspended to
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probation. Thereafter, on November 6, 2017, the trial court granted Rivard’s
petition for sentence modification, ordered the remainder of the sentence
suspended, and permitted Rivard to be placed on probation. That same day,
Rivard acknowledged, agreed to, and signed written conditions of probation
that included the following:
You agree to waive your constitutional rights under the Fourth
Amendment of the United States Constitution and Article 1,
Section 11 of the Indiana Constitution. You waive these
constitutional rights as to your person, vehicle or residence. You
agree that you, any vehicle you are operating or your residence may be
searched at any time without notice, probable cause, or a search warrant.
This search may be conducted by any Vigo County Adult
Probation Officer or any law enforcement officer acting with
reasonable suspicion that you may be in violation of any of the conditions
of your probation or direct placement. . . .
Id. at 123 (emphases added).
[5] In August 2018, the Vigo County Drug Task Force began conducting an
investigation regarding marijuana distribution in the Terre Haute area. At
some point prior to August 29, Terre Haute police received information that
Rivard was dealing marijuana from his Terre Haute residence. This
information was provided to Terre Haute Police Department Detective Brian
Bourbeau from Vivian Frazier after police officers had seized a quantity of
marijuana from Frazier’s residence. At some point, Frazier showed Detective
Bourbeau several text messages that she had received from Rivard, indicating
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that she and Rivard were negotiating a drug deal. Frazier had provided
information to Terre Haute detectives in the past that proved to be reliable.
[6] Detective Bourbeau contacted Rivard’s probation officer and confirmed that a
“Fourth Amendment Waiver” was included in Rivard’s conditions of
probation. Transcript at 7. On August 29, 2018, Detective Bourbeau and other
police officers proceeded to Rivard’s residence, knocked on the door, and
received no response. After a neighbor informed Detective Bourbeau that
Rivard drove a white Lexus and frequently made many trips to and from his
residence on a daily basis, Detective Rivard and some other officers maintained
surveillance in the vicinity.
[7] Later that same day, Detective Bourbeau observed a white Lexus approach the
area. One of the police officers stopped the vehicle for speeding and the driver
was identified as Rivard. Rivard was then transported to his home and
Detective Bourbeau informed him that they were going to search the residence.
At that point, Rivard volunteered that there was marijuana inside. During the
search, the officers seized a total of 203.7 grams of marijuana, a handgun, and
various drug paraphernalia.
[8] Rivard was arrested and charged with several criminal offenses that related to
the items that were seized in the search. The State also filed a petition to revoke
Rivard’s probation on September 4, 2018. At the revocation hearing, Rivard
objected to the admission of the evidence that was seized from his residence,
claiming that the State lacked reasonable suspicion to search his home in
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accordance with the conditions of probation. The State responded that
reasonable suspicion was not required in light of the waiver provision in the
plea agreement. The trial court overruled Rivard’s objection, admitted the
evidence, and determined that the State proved by a preponderance of the
evidence that Rivard had violated the conditions of his probation. 1 Thereafter,
Rivard was sentenced to an executed term of eight years of the previously
suspended sentence. Rivard now appeals.
Discussion and Decision
[9] When reviewing a probation revocation order, we consider the evidence most
favorable to the trial court’s judgment without reweighing the evidence or
judging the credibility of the witnesses. Cox v. State, 706 N.E.2d 547, 551 (Ind.
1999). The trial court has broad discretion to admit evidence, and reversal can
only be predicated on a finding of an abuse of that discretion and resulting
prejudice. Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).
[10] The rules of evidence do not strictly apply in probation matters and trial courts
are “allow[ed] even more flexibility in the admission of evidence[.]” Indiana
Evid. Rule 101(d)(2); Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011).
Additionally, our Supreme Court has held that trial courts may consider any
relevant evidence bearing some substantial indicia of reliability in probation
1
The trial court did not address the issue regarding the legality of the search, and there was no specification
as to which condition of probation that Rivard violated.
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revocation hearings. Cox, 706 N.E.2d at 551. The considerable flexibility trial
judges enjoy in admitting evidence at probation revocation proceedings stems
from the recognition that “probationers are not entitled to the full array of
constitutional rights afforded defendants at trial.” Id. at 549.
[11] Among the protections lost by probationers, is the full applicability of the
exclusionary rule. Dulin v. State, 346 N.E.2d 746, 752-53 (Ind. Ct. App. 1976).
Searches of probationers and community corrections participants who have
either consented or been clearly informed that the conditions of the probation
or community corrections program unambiguously authorized warrantless and
suspicionless searches do not violate the Fourth Amendment. State v.
Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015). On the other hand, a waiver that
permits searches without a warrant and without probable cause does not
unambiguously authorize a search without a “reasonable suspicion” that the
defendant has violated the conditions of probation. See Jarman v. State, 114
N.E.3d 911, 915 (Ind. Ct. App. 2018), trans. denied. Additionally, evidence that
is seized illegally will be excluded from a revocation hearing only if it was
seized as a part of a continuing plan of police harassment or in a particularly
offensive manner. Henderson v. State, 544 N.E.2d 507, 512-13 (Ind. 1989).
[12] In this case, there is no evidence of law enforcement harassment or that the
police were even investigating Rivard before Frazier told Detective Bourbeau
that Rivard was dealing in marijuana. Rivard’s name surfaced only with regard
to a separate, ongoing, drug investigation in Terre Haute. And after the police
had become aware of Rivard’s suspected criminal conduct, they lawfully
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stopped his vehicle for speeding. Rivard has not established that the police
engaged in any inappropriately offensive behavior to obtain the items that were
seized during the search of his residence.
[13] Moreover, Rivard has not shown any violation of the exclusionary rule. The
plea agreement contains no qualifying language regarding the level of suspicion
required, if any, that must be satisfied before a search could be conducted. On
the other hand, the waiver language set forth in the conditions of probation
required “reasonable suspicion” of a probation violation before a lawful search
could be conducted. Notwithstanding the apparent conflict in the two waiver
provisions, we need not decide what language controls, as the State established
that there was a reasonable suspicion that marijuana would be found at
Rivard’s residence.
[14] More particularly, we note that reasonable suspicion exists when facts known to
a police officer, together with reasonable inferences from those facts, would
cause an ordinarily prudent person to believe that a crime has occurred or is
about to occur. Perez v. State, 981 N.E.2d 1242, 1249 (Ind. Ct. App. 2013),
trans. denied. Reasonable suspicion does not require law enforcement officers
to have the level of suspicion necessary for probable cause, but they must have
more than an unparticularized suspicion or hunch. Castner v. State, 840 N.E.2d
362, 366 (Ind. Ct. App. 2006). The totality of the circumstances of each case is
examined to determine whether there is a particularized and objective basis for
suspecting legal wrongdoing. Bush v. State, 925 N.E.2d 787, 791 (Ind. Ct. App.
2010). In short, a police officer must “be able to articulate some facts that
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provide a particularized and objective basis” for believing a crime has occurred
or is afoot. Marshall v. State, 117 N.E.3d 1254, 1259 (Ind. 2019). Information
received by police face-to-face with a person who is making statements against
his or her penal interest enhances the credibility and reliability of that person’s
information. Robinson v. State, 888 N.E.2d 1267, 1270-71 (Ind. Ct. App. 2008),
trans. denied.
[15] In this case, Rivard volunteered to police officers that marijuana was in his
residence. This “open admission” came immediately after the lawful traffic
stop when Detective Bourbeau told Rivard that his house was going to be
searched. Transcript at 8, 27-28. Rivard’s volunteered statement to police
officers that marijuana was in his house supplied the requisite reasonable
suspicion to justify a search. See Carter v. State, 634 N.E.2d 830, 833 (Ind. Ct.
App 1994) (recognizing that a defendant’s volunteered statements not made in
response to police interrogation are not barred by the Fifth Amendment to the
United States Constitution). Moreover, Rivard’s admission was consistent with
the information that Frazier conveyed to police. Frazier, who was not “on
contract as an informant,” told Detective Bourbeau that she had purchased
marijuana from Rivard, which was a statement against her penal interest.
Transcript at 22. See Robinson, 888 N.E.2d at 1270-71. Frazier corroborated
those statements when she showed Detective Bourbeau her text message
exchange with Rivard regarding an imminent drug transaction.
[16] Given Rivard’s admission that there was contraband in his house and Frazier’s
corroborated tip, it is readily apparent that the standard of reasonable suspicion
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was established that justified the search of his residence. Thus, Rivard has
failed to show that his Fourth Amendment rights were violated when the police
officers searched his residence. 2 For the foregoing reasons, we conclude that
the trial court did not err in revoking Rivard’s probation.
[17] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
2
Although Rivard cites to some authority and makes a general assertion that the search also violated Article
1, Section 11 of the Indiana Constitution, he advances no separate analysis under the state constitution.
Thus, the claim is waived. Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001); Jackson v. State, 996 N.E.2d 378,
383 n.3 (Ind. Ct. App. 2013), trans. denied. Waiver notwithstanding, we note that Article 1, Section 11 of the
Indiana Constitution turns on the reasonableness of police conduct rather than a defendant’s expectation of
privacy. See Carpenter v. State, 18 N.E.3d 998, 1001-02 (Ind. 2014) (holding that “reasonableness” focuses on
the totality of the circumstances considering the degree of knowledge that a violation has occurred, along
with the extent of intrusion that the method of the search imposes on the citizen’s usual activities, and the
extent of law enforcement needs). Here, only reasonable suspicion—at most—was required to search
Rivard’s residence pursuant to the conditions of probation, there was little or no intrusion upon Rivard’s
ordinary activities when police searched his residence, inasmuch as he was permitted to walk around the
house and smoke a cigarette, and the need to determine whether Rivard was continuing to sell drugs in
violation of the conditions of his probation was high in light of the fact that he had been placed on probation
for drug dealing.
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