James Short v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 14 2018, 6:45 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman Curtis T. Hill, Jr.
Austin & Jones, P.C. Attorney General of Indiana
Indianapolis, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Short, November 14, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1372
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clark Rogers,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G25-1610-F6-39353
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 1 of 6
Case Summary
[1] In October of 2016, while James Short was serving probation in another
county, Marion County probation officers and sheriff’s deputies conducted a
warrantless search of his Marion County residence and discovered
methamphetamine. As a condition of probation, Short had consented to submit
to a search of his residence by any probation or law enforcement officer.
Marion County subsequently charged Short with Level 6 felony possession of
methamphetamine. The trial court admitted the methamphetamine into
evidence at Short’s bench trial, over his objection, and found him guilty as
charged. Short contends that the trial court abused its discretion by admitting
the methamphetamine because the Marion County probation officers and
sheriff’s deputies did not have authority to conduct a warrantless search of his
residence because he was not validly serving Marion County probation.
Because Short agreed to submit to a search of his residence by “any” probation
or law enforcement officers we disagree and affirm.
Facts and Procedural History
[2] On January 27, 2006, Short was sentenced to three years in community
corrections and five years of probation under Putnam County cause number
67D01-0410-FC-218 (“Putnam County Cause”), which was later modified to
two years in community corrections and six years of probation. On June 21,
2012, Short was arrested and charged with criminal deviate conduct under
Marion County cause number 49G03-1206-FB-42279 (“Marion County
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Cause”). Putnam County subsequently filed multiple petitions to revoke Short’s
probation in the Putnam County Cause. On April 16, 2013, Short pled guilty in
the Marion County Cause and was sentenced to seven years of incarceration
with four years suspended to probation, three of those years on supervised sex
offender probation, to be served consecutively to the Putnam County Cause.
Short was then transported to the Indiana Department of Correction (“DOC”)
to serve the executed portion of his Marion County sentence.
[3] On December 24, 2015, Short was released from the DOC and transported to
Putnam County to resolve pending probation violations. On March 4, 2016,
Short posted bail in Putnam County and reported to the Marion County
Probation Department to inform his probation officer that he would begin
serving his probation in the Marion County Cause following completion of his
probation in the Putnam County Cause. However, the Marion County
probation officer placed Short on supervised sex offender probation that day.
Putnam County probation officer Kim Thibodeau resumed monitoring Short
after he posted bail, and on July 26, 2016, she contacted Marion County
probation to ensure that Short was complying with the conditions of probation
imposed in the Putnam County Cause while residing in Marion County.
[4] On October 5, 2016, Marion County probation officers and sheriff’s deputies
conducted a home visit at Short’s Marion County residence and discovered
methamphetamine. Short was charged with Level 6 felony possession of
methamphetamine under Marion County cause number 49G14-1610-F6-39353
(“Cause No. F6-39353”).
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[5] Prior to trial in Cause No. F6-39353, Short sought to suppress the
methamphetamine, arguing that he was only validly serving probation in
Putnam County at the time of the search, which made the search by the Marion
County probation officers improper. The trial court denied Short’s motion and
held a bench trial on May 2, 2018, during which it admitted the
methamphetamine as evidence. The trial court found Short guilty as charged
and sentenced him to 544 days of incarceration.
Discussion and Decision
[6] Short contends that the trial court abused its discretion by admitting the
methamphetamine discovered during the warrantless search of his residence.
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014). “A trial court
abuses its discretion when its decision is clearly against the logic and effect of
the facts and circumstances or when the trial court has misinterpreted the law.”
Id.
[7] Generally, the Fourth Amendment of the United States Constitution and
Article 1, Section 11 of the Indiana Constitution require searches to be
conducted pursuant to a warrant supported by probable cause. Hodges v. State,
54 N.E.3d 1055, 1058 (Ind. Ct. App. 2016). There are, however, various
exceptions to the warrant requirement, id. at 1059, which the State bears the
burden of proving existed at the time of the search. Sugg v. State, 991 N.E.2d
601, 607 (Ind. Ct. App. 2013), trans. denied. One such exception is a valid
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waiver in the terms and conditions of probation. See State v. Vanderkolk, 32
N.E.3d 775, 775 (Ind. 2015) (establishing that a probationer may in advance, by
a valid consent or search term in the conditions of release, authorize a
warrantless search of his residence without reasonable suspicion). The
probationer must be “unambiguously informed of a clearly expressed search
condition in the conditions of their release to probation.” Hodges 54 N.E.3d at
1060 (internal quotations admitted).
[8] Neither Short nor the State contests that Short was on probation in Putnam
County at the time his residence was searched.1 On February 26, 2008, by
signing and dating the Putnam County trial court’s order of probation, Short
acknowledged that he read and understood the conditions listed therein. One of
these conditions provided that Short would “submit to search of person,
property or residence upon request by any probation, PCADP or law
enforcement officer.” Def. Ex. E (emphasis added). The language of the
condition is clear that Short authorized a search of himself and his residence by
any probation or law enforcement officer while on Putnam County probation.
Short specifically contends that because he was not validly serving his Marion
County probation until completion of his Putnam County probation, Marion
County probation officers and sheriff’s deputies had no authority to search his
residence. This distinction makes no difference, because Marion County
1
There does seem to be some question, however, as to whether Short was also validly serving Marion
County probation on the date of the search. Because disposition of that issue is inconsequential to our
decision in this matter, we will not address it.
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probation officers and sheriff’s deputies qualify as “any” probation or law
enforcement officers under the conditions of Putnam County probation. Short
has failed to establish that the trial court abused its discretion by admitting the
methamphetamine that was discovered during the warrantless search of his
residence.
[9] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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