FOR PUBLICATION
                                                         FILED
                                                       Mar 08 2012, 8:52 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MELISSA J. HALEY                              GREGORY F. ZOELLER
Ripstra Law Office                            Attorney General of Indiana
Jasper, Indiana
                                              NICOLE M. SCHUSTER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA


PAMELA J. HENSLEY,                            )
                                              )
     Appellant-Defendant,                     )
                                              )
            vs.                               )      No. 63A01-1105-CR-195
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Plaintiff.                      )



                     APPEAL FROM THE PIKE CIRCUIT COURT
                     The Honorable Robert L. Arthur, Senior Judge
                           Cause No. 63C01-1004-FD-258



                                    March 8, 2012


                            OPINION - FOR PUBLICATION


KIRSCH, Judge
        Pamela J. Hensley (―Hensley‖) brings this discretionary interlocutory appeal from

the trial court‘s denial of her motion to suppress. She raises one issue on appeal, which

we restate as whether the search of Hensley‘s home violated her right to be free from

unreasonable search and seizure guaranteed under the Fourth Amendment to the United

States Constitution.

        We reverse and remand.

                          FACTS AND PROCEDURAL HISTORY

        Hensley, who lives in a home at the North Side Trailer Court in Petersburg

Indiana, is married to Robert Hensley (―Robert‖). During the time in question, Robert

was on probation through the Pike Circuit Court.                 The pertinent conditions of his

probation provided that Robert ―shall not possess or use any firearm‖ and ―shall not

consume or use any alcohol or controlled substance unless prescribed by a physician.‖ 1

Appellant’s App. at 34. An additional condition of probation ―allow[ed] a Probation

Officer to visit his home and conduct a warrantless search.‖2 Id.

        In April 2010, Corporal Chad Tharp (―Officer Tharp‖) of the Petersburg Police

Department received a tip that Robert, who the officer knew to be on probation, was in

        1
         Robert‘s written conditions of probation are not included in the record before us. Therefore, we
refer to the conditions of probation described in the ―State‘s Response to Defendant‘s Motion to
Suppress.‖ Appellant’s App. at 34.
        2
         In the State‘s response to Hensley‘s motion to suppress, the State contends that it was also a
condition of probation that Robert ―waive[] his right against unreasonable search and seizure by the
Probation Officer or anyone acting on behalf of the Pike County Probation Department.‖ Appellant’s
App. at 34 (emphasis added). We cannot confirm whether Robert agreed to such a condition; however,
we note that our court has found such a condition to be unconstitutional. See Fitzgerald v. State, 805
N.E.2d 857, 865-66 (Ind. Ct. App. 2004) (such a provision is ―invalid because it explicitly attempts to
allow Probation Officers to perform unreasonable searches, even though it has repeatedly been stated that
probationers enjoy a constitutionally protected right against such‖).


                                                   2
possession of marijuana. When deposed prior to trial, Officer Tharp could not recall who

had provided the tip. Appellant’s App. at 69-70. Officer Tharp took no action at that

time. Three weeks after having received the marijuana tip, Officer Tharp was patrolling

Hensley‘s neighborhood when someone approached him and said that Robert possessed a

firearm. Tr. at 11. Officer Tharp understood that he ―didn‘t have enough for a search

warrant,‖ so on April 22, 2010, he contacted the Chief Probation Officer of Pike County,

Susan Stuckey (―Stuckey‖). Tr. at 13. Based on the information supplied by Officer

Tharp, Stuckey agreed to do a probation check that same day.

       Stuckey went to Hensley‘s home, accompanied by Officer Tharp and a second

Petersburg Police Officer, Chad McClellan (―Officer McClellan‖).             Officer Tharp

assumed that because Robert and Hensley were married, they jointly owned the house

and shared the bedroom. Tr. at 17. The police knew that Justin Williams, a former co-

worker of Robert‘s, also had lived at the house. Tr. at 11, 23; Appellant’s Br. at 3.

       Robert was not at the residence when the officers arrived. Stuckey told Hensley

that the purpose of the visit was to do a home check, and Hensley allowed them into the

house because Robert was on probation. Stuckey initially helped Hensley put away her

dogs, and as the two talked, Stuckey learned that only Hensley slept in the bedroom, and

Robert slept in the living room.

       When Officers Tharp and McClellan entered the home, they did not perform a

safety sweep, nor did they inquire as to who owned or lived in the home; instead, they

immediately began to search. While searching in the bedroom, Officer Tharp flipped the

mattress and found a can containing a green, leafy substance, which was later determined

                                             3
to be marijuana. He then opened ―Pam Hensley‘s underwear drawer [and] in a ring box‖

found ―an unknown tablet that was later identified by a pharmacist to be a generic form

of Xanax.‖ Appellant’s App. at 90. In her deposition, Stuckey testified that it was not

common in a probation check to look under mattresses or to search in a probationer‘s

wife‘s ―underwear drawer.‖ Id. at 84, 90-91. No firearms were found during the search.

      Stuckey, who had started her probation search at the front of the house, followed

probation protocol and looked for anything in plain view, but saw nothing illegal or

suspicious. Tr. at 26. Upon reaching the bedroom, Stuckey looked at the disarray in the

bedroom and believed it had been ―ransacked.‖ Id.

      Having found the marijuana and generic Xanax pill, the police obtained a search

warrant and, thereafter, found ―rolling papers,‖ a ―one[-]hitter pipe,‖ and ―two

prescription bottles‖—one with the name Jack Onyett and one with the name Pam Bailey.

Appellant’s App. at 56, 58. Based on the evidence obtained, the State charged Hensley

with the following drug-related charges: (1) possession of a schedule IV controlled

substance3 as a Class D felony; (2) possession of a legend drug without a prescription, 4 a

Class D felony; (3) maintaining a common nuisance5 as a Class D felony; (4) possession

of marijuana6 as a Class A misdemeanor; and (5) possession of paraphernalia7 as a Class

A misdemeanor.

      3
          See Ind. Code § 35-48-4-7(a).
      4
          See Ind. Code § 35-43-10-3.
      5
          See Ind. Code § 35-48-4-13(b)(2)(B).
      6
          See Ind. Code § 35-48-4-11.
      7
          See Ind. Code § 35-48-4-8.3(b).

                                                 4
       Prior to trial, Hensley filed a motion to suppress the evidence seized during the

search of her home. A hearing was held, and the trial court considered the parties‘ briefs

and the published depositions of Officers Tharp and Stuckey before entering an order

denying Hensley‘s motion to suppress. The trial court certified the order for interlocutory

appeal, and this court accepted Hensley‘s interlocutory appeal. Hensley now appeals.

Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       On appeal, Hensley contends that the warrantless search of her home was illegal

under the Fourth Amendment to the United States Constitution and, as such, that the

evidence found during the search should have been suppressed. Specifically, she argues

that the trial court abused its discretion by admitting the evidence obtained during the

search because: (1) ―[s]he was not the person on probation‖; (2) ―the search exceeded the

scope and regulatory scheme of a probation search‖; and (3) ―the search was merely a

pretext to conduct an investigatory search without first securing a warrant.‖ Appellant’s

Br. at 1.

       The Fourth Amendment to the United States Constitution provides that ―[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .‖ Micheau v. State, 893

N.E.2d 1053, 1059 (Ind. Ct. App. 2008), trans. denied (2009).             The Fourteenth

Amendment makes this protection applicable to actions by state officials. Allen v. State,

743 N.E.2d 1222, 1227 (Ind. Ct. App. 2001) (citing Elkins v. United States, 364 U.S. 206,

213 (1960), trans. denied). ―[A] search arises out of an intrusion by a governmental actor

                                            5
upon an area in which a person maintains a ‗reasonable expectation of privacy.‘‖ Holder

v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Katz v. U.S., 389 U.S. 347, 361(1967)

(Harlan, J., concurring)). A constitutionally protected reasonable expectation of privacy

exists where there is both a subjective expectation of privacy and societal recognition that

such expectation of privacy is reasonable. Id. at 936.

       Generally, a search warrant is a prerequisite to a constitutionally proper search and

seizure. Danner v. State, 931 N.E.2d 421, 428 (Ind. Ct. App. 2010), trans. denied.

However, the United States Supreme Court has determined that ―the ‗special needs‘ of a

probationary system, particularly the need to supervise probationers closely, justifie[s]

warrantless searches based on reasonable suspicion rather than probable cause.‖ State v.

Schlechty, 926 N.E.2d 1, 3-4 (Ind. 2010), cert. denied, 131 S. Ct. 934(U.S. 2011) (citing

Griffin v. Wisconsin, 483 U.S. 868, 873–74 (1987)).

       In Schlechty, our Supreme Court, citing to the reasoning of the United States

Supreme Court, noted the two different ways in which a probation search may be

analyzed under the Fourth Amendment:

       [A] warrantless probation search under Griffin may be justified on the basis
       of reasonable suspicion to believe a probation violation has occurred
       because, among other things, supervision of probationers is necessary to
       ensure that probation restrictions are in fact observed, and that the
       community is not harmed by the probationer being at large. Griffin, 483
       U.S. at 873–75 []. By contrast, under [United States v.] Knights, [534 U.S.
       112 (2001)], even if there is no probationary purpose at stake, a warrantless
       search may be justified on the basis of reasonable suspicion to believe that
       the probationer has engaged in criminal activity and that a search condition
       is one of the terms of probation.




                                             6
926 N.E.2d at 6 (emphasis added).         A ―probationer‘s home, like anyone else‘s, is

protected by the Fourth Amendment‘s requirement that searches be ‗reasonable.‘‖

Bonner v. State, 776 N.E.2d 1244, 1248 (Ind. Ct. App. 2002) (citing Griffin, 483 U.S. at

873).

        The concept of ―‗affording probationers lesser protections is predicated on the

premise that probation officers, or police working with probation officers, are conducting

searches connected to the enforcement of conditions of probation and not for normal law

enforcement purposes.‘‖      Allen, 743 N.E.2d at 1127-28 (quoting Polk v. State, 739

N.E.2d 666, 669 (Ind. Ct. App. 2000)). The State cites to Griffin in support of its position

that this search did not violate the Fourth Amendment.

        In Griffin, the United States Supreme Court upheld the constitutionality of a
        warrantless search performed by a probation officer pursuant to a state
        regulation that authorized such searches on the basis of reasonable
        suspicion and articulated factors to be considered in determining the
        existence of reasonable suspicion. See 483 U.S. at 872–80. The Court
        concluded that the ―special needs‖ of the probationary system, particularly
        the need to supervise probationers closely, justified warrantless searches
        based on reasonable suspicion rather than probable cause. See id. at 875
        (noting ―[s]upervision, then, is a ‗special need‘ of the State permitting a
        degree of impingement upon privacy that would not be constitutional if
        applied to the public at large.‖). Accordingly, the Court determined that the
        search of the probationer‘s residence was reasonable within the meaning of
        the Fourth Amendment because it was conducted pursuant to a valid
        regulation governing probationers.

Schlechty, 926 N.E.2d at 3-4.

        We begin by noting that the officers in Griffin searched the probationer‘s

residence after receiving a tip that the probationer had a handgun. Unlike the facts in this

case, the tipster in Griffin was a reliable source, and the search in Griffin was ―carried out


                                              7
entirely by the probation officers under the authority of Wisconsin‘s probation

regulation.‖ Griffin, 483 U.S. at 871. Here, the State does not cite to a probation

regulation; instead, it contends that the ―record in this case supports the trial court‘s

determination that this was a probation search, not an investigatory search, and that it was

reasonable.‖ Appellee’s Br. at 7. Our review of the record leads us to a different

conclusion.

       Officer Tharp testified that he received a tip from an unnamed source, who

claimed that Robert had marijuana. Officer Tharp took no action based on this tip.

About three weeks later, Officer Tharp received a tip that Robert had a firearm. Officer

Tharp had not previously obtained information from this tipster and did not know his

truthfulness; nevertheless, he contacted Stuckey. Based on the information supplied by

Officer Tharp, Stuckey agreed to conduct a probation search of Robert‘s residence and

agreed that Officers Tharp and McClellan could join her. Upon arriving at the residence,

Stuckey announced to Hensley that the officers were there to do a probation search, and

Hensley let the three officers into her home.

       Officers Tharp and McClellan entered the house with Stuckey, but immediately

began their own search while Stuckey spoke with Hensley. It was at this point that

Officer Tharp and Officer McClellan‘s search ceased being a search to determine whether

Robert had committed a probation violation. While Hensley was telling Stuckey that she

slept in the bedroom and Robert slept in the living room, the other officers were in

Hensley‘s bedroom overturning the mattress and pulling items out of Hensley‘s dresser

drawers.

                                                8
       In her deposition, which was introduced at trial, Stuckey testified that the

―standard[] for a home check for probation is that we can walk through the home and if

[we] see, in plain view, evidence of illegal activity, then the house can be searched.‖

Appellant’s App. at 83 (emphasis added). Stuckey saw nothing in plain view, but while

in the home, she was handed a tin by Officer Tharp that contained marijuana. Stuckey

learned only later that the tin was found under Hensley‘s mattress. Stuckey testified that

it was not standard practice in a probation search to look under a mattress and that she

had not instructed the other officers to look under or in things. Id. at 94. She also

testified that the disarray of the searched bedroom made her uncomfortable enough with

the process that she left the home and stood outside while the officers completed their

search. When asked why she was uncomfortable with the process, Stuckey testified:

       Because this is not the way that a probation home check is supposed to be
       handled. Judge Stratton, the judge that hired me, told me that a home check
       was not to be used as a back door for a warrant [] check.

Appellant’s App. at 87. From this testimony, it is clear that Stuckey did not think that the

search followed the protocol of a probation search.

       The record before us also supports the conclusion that Officer Tharp was not

conducting a probation search. During the suppression hearing, Officer Tharp gave the

following testimony:

       Q.     Is it common to do a probation search where the probationer is not
              even present?

       A.     The who?

       Q.     The, the individual on probation. The probationer.


                                             9
       A.     Like I said, I don‘t know what they‘re, I don‘t know what they‘re,
              what they do down there at probation. I don‘t know what their, what
              they go by. What their standards are. Um, I believe they can search
              his residence anytime, whether he‘s there or not. In my opinion, I
              believe that‘s what it is.
       ....

       Q.     But before you began searching, did you ask any specific questions
              regarding ownership?

       A.     Um, no.

Tr. at 16.

       This evidence reveals that the search was not conducted as a probation search, nor

was it truly conducted for probation reasons. Instead, the police were pursuing their own

agenda and conducted an investigatory search under the guise that it was a probationary

search. The search was prompted by the police officers, not by the probation officer.

Stuckey agreed that the police could join her in the search, as officers often do for the

reason of safety. Instead of acting as Stuckey‘s backup, however, the police entered the

home and left Stuckey alone with Hensley, without conducting a safety sweep of the

home that purportedly contained a firearm. The police did not ask Hensley about the

ownership of the home and failed to follow the lead of Stuckey, from whom they could

have learned that Robert slept in the living room and not the bedroom. This search did

not meet the guidelines for a valid search under Griffin.

       The State next contends that the search was proper under the analysis of Knights.

Our Supreme Court analyzed Knights as follows:

       [I]n [Knights], the United States Supreme Court expanded its holding in
       Griffin by declaring that searches performed in compliance with a search
       provision contained within a valid probation agreement may be

                                             10
      constitutional even if they were not ―conducted by a probation officer
      monitoring whether the probationer is complying with probation
      restrictions.‖ Knights, 534 U.S. at 117. In Knights, the defendant was a
      probationer who challenged the constitutionality of the search of his home
      without a warrant. As a condition of probation, the defendant had signed a
      document that provided for police access to his ―person, property, place of
      residence, vehicle, personal effects, to search at anytime, with or without a
      search warrant, warrant for arrest or reasonable cause by any probation
      officer or law enforcement officer.‖ Id. at 114. The defendant argued that
      the search was unconstitutional because police did not have a ―special
      need‖ beyond normal law enforcement to support the warrantless search.
      Id. at 117–18. In essence the defendant argued the search was invalid
      because it was conducted for ―investigatory‖ rather than ―probationary‖
      purposes. Id. at 116. A unanimous Court rejected this argument and
      concluded that the probationer‘s acceptance of a clear and unambiguous
      search condition ―significantly diminished [the probationer‘s] reasonable
      expectation of privacy.‖ Id. at 119–20. . . . [T]he Court concluded that the
      search was reasonable under its general Fourth Amendment approach of
      examining the totality of the circumstances ―with the probation search
      condition being a salient circumstance.‖ Id. Ultimately the Court
      determined that the warrantless search of the probationer‘s home was
      reasonable within the meaning of the Fourth Amendment because it was
      authorized by a condition of probation and supported by reasonable
      suspicion. Specifically the Court held ―[w]hen an officer has reasonable
      suspicion that a probationer subject to a search condition is engaged in
      criminal activity, there is enough likelihood that criminal conduct is
      occurring that an intrusion on the probationer‘s significantly diminished
      privacy interests is reasonable.‖ Id. at 121.

Schlechty, 926 N.E.2d at 4-5.

      To qualify as a constitutional search under Knights, the police would have needed

to have reasonable suspicion that Robert had engaged in criminal activity. In the State‘s

response to Hensley‘s motion to suppress, the State makes no mention of the reasoning in

Knights, nor does it contend that these unsubstantiated tips provided ―reasonable

suspicion‖ to believe that Robert was engaging in criminal activity. Furthermore, the

evidence found in Hensley‘s home was discovered under her bed and in her dresser


                                           11
drawer. Hensley was not on probation nor was she the person suspected of criminal

activity. The search by Officer Tharp, which uncovered the marijuana and generic Xanax

violated her Fourth Amendment right against unreasonable search and seizure under

Knights.8

        We reverse the trial court‘s denial of Hensley‘s motion to suppress the evidence

found during the search of her home, and remand for further action.

        Reversed and remanded.

BARNES, J., and BRADFORD, J., concur.




        8
          Because we find that the search was unconstitutional under the Fourth Amendment, we do not
reach Hensley‘s claim that the search was also unconstitutional under Article I, section 11 of the Indiana
Constitution.

                                                   12
