                                                                                   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.




Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                    Page 1 of 19
                                              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.

      Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                       Page 2 of 19
      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.

      Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                          Page 3 of 19
      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



      Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016   Page 4 of 19
      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.



      Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016   Page 5 of 19
                                        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 ….”

      Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                             Page 6 of 19
       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
       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016   Page 7 of 19
       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.


       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                        Page 8 of 19
       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




       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016      Page 9 of 19
       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.

       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                               Page 10 of 19
       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.


       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016   Page 11 of 19
       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.




       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016    Page 12 of 19
       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

       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                Page 13 of 19
       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
       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016    Page 14 of 19
               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


       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016      Page 15 of 19
       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.
       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016       Page 16 of 19
       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,



       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016         Page 17 of 19
               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



       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016           Page 18 of 19
       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.

       Court of Appeals of Indiana | Opinion 43A03-1507-CR-843 | May 18, 2016                          Page 19 of 19
