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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018   Page 2 of 6
      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”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018   Page 3 of 6
[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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018   Page 4 of 6
      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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018                  Page 5 of 6
      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.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018   Page 6 of 6
