MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Dec 06 2019, 9:27 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kyle E. Cray                                             Curtis T. Hill, Jr.
Bennet Boehning & Clary, LLP                             Attorney General of Indiana
Lafayette, Indiana                                       J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cory Smith,                                              December 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-407
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1710-F2-19



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019                 Page 1 of 11
[1]   Cory Smith appeals his convictions for dealing methamphetamine, unlawful

      possession of a syringe, possession of paraphernalia, and maintaining a

      common nuisance and the finding that he is an habitual offender. We affirm.

                                      Facts and Procedural History

[2]   Smith signed several instruments in connection with his placement on home

      detention through Tippecanoe County Community Corrections including a

      document dated July 18, 2017, which provided in part:


                  COMMUNITY CORRECTION POLICY CONCERNING
                           SEARCH AND SEIZURES

                                 Waiver of Fourth Amendment Rights

              CAUTION: The following document is legally binding. Read and
              understand it before signing.

              In consideration of the opportunity to participate in a Community
              Corrections program rather than serve my sentence through the
              Department of Correction or other secure or more restrictive
              environment, I acknowledge and agree that I hereby waive my rights
              concerning searches and seizures under the Fourth and Fourteenth
              Amendments of the United States Constitution and under Article 1, §
              11 of the Indiana Constitution. Specifically, I hereby consent to allow
              employees of Community Correction or law enforcement officers to
              search my person or property without a warrant and without probable
              cause.

              I agree that such a search is permissible during day or night and
              includes, without limitation, entrance into or searches of my residence,
              my telephone, any computing device of mine, secure containers and
              vehicles. Such searches may take place in my presence or outside of my
              presence and with or without prior notice to me.

                                                   *****

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 2 of 11
              I further understand and agree that any evidence found as a result of
              such a search of my person or property may be used as evidence against
              me in a disciplinary hearing, court of law, or otherwise.

      State’s Exhibit 1. Smith signed another instrument dated August 25, 2017,

      providing in part:


                                            Consent to Search

                                                   *****
              Agreement: The undersigned owner(s)/leaseholder(s) hereby authorize
              law enforcement officers of the Tippecanoe County Sheriff’s
              Department, Lafayette Police Department, West Lafayette Police
              Department, Purdue University Police Department, Tippecanoe
              County Probation Department, and Tippecanoe County Community
              Corrections to search my house, apartment, premises, business, vehicle
              and/or any contents therein.

              The undersigned has been advised that he or she is not required to
              execute this consent and that any property found at such house,
              apartment, premises, business, or vehicle may be used against me in a
              criminal prosecution. Being so advised, I hereby waive any and all
              objections that may be made by me to said search. I further declare that
              this waiver is freely and voluntarily given of my own free will and
              accord and is a standing waiver so long as Participant is an active
              program participant of Tippecanoe County Community Corrections.

      Id.

[3]   On October 14, 2017, Adam Sowders, a community corrections surveillance

      officer, was notified by home detention coordinator Josh Cole “that a WeTip

      information come [sic] in,” and Cole requested that Sowders search Smith’s

      residence. Transcript Volume 2 at 120. Officer Sowders was made aware that

      there was possible drug use or drugs at the residence. He reviewed Smith’s file


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 3 of 11
      and confirmed that it contained Smith’s signed consent to search. Wearing his

      uniform, Officer Sowders went to Smith’s residence with two other community

      corrections officers, including Officer Clint Delp, who made initial contact.

      Officer Sowders asked if there was anything in the residence that was going to

      get Smith in trouble with the home detention rules and conditions. Smith stood

      up and walked toward a bedroom, and Officer Sowders followed him. Smith

      started to reach for a drawer of a nightstand, Officer Sowders stopped him for

      safety considerations and asked what he was reaching for in the drawer, and

      Smith stated “a spoon.” Id. at 126. Smith indicated that he had used illegal

      drugs a few hours earlier, that he had used a needle, and that the needle was in

      his pocket or somewhere in the residence.


[4]   After Smith’s admissions, Officer Sowders placed him in restraints and found a

      spoon with residue on it in the nightstand drawer. Officer Sowders checked the

      bedroom and closets and found a backpack containing drug paraphernalia

      which included “[a] whizzinator touch, baggies of illegal drugs and syringes.”

      Id. at 144. Given the amount of paraphernalia, Sowders contacted the

      Lafayette Police Department, and Lafayette Police Officer Brian Landis and

      another officer responded to the scene. Police discovered plastic baggies, a

      digital scale, syringes, rubber bands or tourniquets, cooking tins, cotton balls

      with residue on them, and a significant amount of methamphetamine in the

      residence and $666 in cash on Smith. As he walked Smith out of the building,

      Officer Landis commented “it was fairly shocking, having done this for nearly

      sixteen years to be on a pretty significant drug seizure with somebody who was


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 4 of 11
      currently on a house arrest program where they had their fourth amendment

      waiver and then it was fairly surprising to me that he had put himself in that

      situation,” and Smith stated he “had no choice” after he recently lost his job

      and had to pay rent and this was “the easiest way to do it.” Id. at 88-89, 157.


[5]   The State charged Smith with: Count I, dealing in methamphetamine as a level

      2 felony; Count II, possession of methamphetamine as a level 3 felony; Count

      III, possession of a narcotic drug as a level 5 felony; Count IV, unlawful

      possession of a syringe as a level 6 felony; Count V, possession of paraphernalia

      as a class C misdemeanor; Count VI, maintaining a common nuisance as a

      level 6 felony; and Count VII, conspiracy to deal in methamphetamine as a

      level 2 felony. It also alleged Smith was an habitual offender. Smith filed a

      motion to suppress statements he made to Officer Landis. The court granted

      the motion except as to Smith’s voluntary statement that he “had no choice; he

      recently quit his job; he needed money; and this was the easiest way for him to

      make money,” and it found this statement was not made as a result of a

      custodial interrogation. Appellant’s Appendix Volume 2 at 96. Smith also filed

      a motion to suppress the evidence obtained during the search. In denying the

      motion, the court noted that it had watched the recording from Officer

      Sowders’s body camera and stated “I remember being impressed with Mr.

      Sowders[’s] demeanor. Just the way that he handled himself the entire time,”

      “[t]here are times when there is just this law enforcement presence that’s so

      abrasive and it almost gives you the impression, hey they’re going to come in

      and do whatever they want anyhow,” and “[h]e was polite, he was respectful,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 5 of 11
      he—you know he said hey anything going on here, that’s going to get you in

      trouble and you know my take is that you had an option at that point.”

      Transcript Volume 2 at 139. The court found “I think that once the state had

      evidence of the spoon, the drug paraphernalia, the residue on the spoon,

      looking for a needle . . . I think it goes well beyond reasonable suspicion.” Id.

      at 140. Following a bench trial, the court entered convictions on Counts I, IV,

      V and VI and found Smith was an habitual offender. It sentenced him to ten

      years on Count I, one year on Count IV, sixty days on Count V, and one year

      on Count VI, all to be served concurrently, and enhanced the sentence under

      Count I by six years for being an habitual offender.


                                                  Discussion

                                                        I.

[6]   Smith claims the trial court improperly admitted evidence obtained from the

      search of his residence and argues the search was unlawful under the Fourth

      Amendment to the United States Constitution and Article 1, Section 11 of the

      Indiana Constitution. We review a trial court’s decision to admit or exclude

      evidence using an abuse of discretion standard. Collins v. State, 966 N.E.2d 96,

      104 (Ind. Ct. App. 2012). Where the issue concerns the constitutionality of a

      search or seizure, the ultimate determination is a question of law to be reviewed

      de novo. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).


[7]   Smith was on home detention through community corrections when his

      residence was searched. In State v. Vanderkolk, the Indiana Supreme Court


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 6 of 11
observed that 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, and that 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. 32 N.E.3d 775, 777

(Ind. 2015). The Court noted that, in Samson v. California, 547 U.S. 843, 126 S.

Ct. 2193 (2006), the United States Supreme Court permitted a suspicionless

search where a parolee had agreed to a parole search condition authorizing

searches “with or without a search warrant and with or without cause.”

Vanderkolk, 32 N.E.3d at 777 (citing Samson, 547 U.S. at 846, 126 S. Ct. at

2196). The Vanderkolk Court held:


        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. . . .

        A probationer or community corrections participant may, pursuant
        to a valid search condition or advance consent, authorize a
        warrantless premises search without reasonable suspicion.

Id. at 779-780. The Court did not specify what a valid search condition must

look like under the Fourth Amendment or the Indiana Constitution, but merely

stated that probationers or community corrections participants must be

“unambiguously informed of a clearly expressed search condition in the

conditions of release to probation or community corrections.” Id. at 779 (Ind.

2015). See Hodges v. State, 54 N.E.3d 1055, 1060 (Ind. Ct. App. 2016)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 7 of 11
      (observing the Vanderkolk Court did not specify what a valid search condition

      must look like under the Fourth Amendment or the Indiana Constitution). 1


[8]   Here, Smith signed a Waiver of Fourth Amendment Rights consenting to a

      search of his person and property by community corrections or law enforcement

      without a warrant and without probable cause. Moreover, he executed a

      document titled “Consent to Search” from Tippecanoe County Community

      Corrections in which he specifically provided that he “authorize[d] law

      enforcement officers of the . . . Lafayette Police Department . . . and

      Tippecanoe County Community Corrections to search [his] house, apartment,

      [and] premises . . . and/or any contents therein” and that he “waive[d] any and

      all objections that may be made by me to said search.” State’s Exhibit 1

      (emphasis added). In light of Smith’s consent and Vanderkolk, we conclude the

      search did not violate the Fourth Amendment or Article 1, Section 11. See

      Hodges, 54 N.E.3d at 1061 (search pursuant to consent providing “[y]ou waive

      your right against search and seizure” and law enforcement may “search your

      person, residence” was sufficient to constitute a clearly expressed search

      condition). 2




      1
        In Hodges, this Court noted: “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.” Hodges,
      54 N.E.3d at 1060 n.6.
      2
       In Hodges, we held that, while we generally interpret and apply Article 1, Section 11 independently from the
      Fourth Amendment and consider the factors in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), in light of
      Vanderkolk’s expansive endorsement of warrantless and suspicionless searches, a separate Litchfield analysis is

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019                    Page 8 of 11
[9]   Smith further claims that his statements to Officer Sowders should have been

      suppressed because he was in custody and had not been advised of his Miranda

      rights and that his statement to Officer Landis admitted into evidence was not

      voluntary. The Fifth Amendment provides that no person shall be compelled in

      any criminal case to be a witness against himself. Brabandt v. State, 797 N.E.2d

      855, 861 (Ind. Ct. App. 2003). In order to protect the privilege against self-

      incrimination, the United States Supreme Court held that incriminating

      statements made while a defendant is in custody and subject to interrogation

      may not be admitted unless the defendant waives his Fifth Amendment

      privilege. Id. (citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)).

      Law enforcement officers are not required to give a defendant Miranda

      warnings unless the defendant is both in custody and subject to interrogation in

      connection with the investigation of a crime. Id. We conclude that, under the

      facts of this case, Smith was not in custody for purposes of Miranda when he

      stated that he had used drugs earlier in the day. Further, the record supports

      the trial court’s determination that Smith’s statements that he “had no choice”

      because he had recently lost his job and “that was the easiest way to do it” were

      made voluntarily and not as a result of a custodial interrogation. See Transcript

      Volume 2 at 157. The challenged statements were not taken in violation of




      not required. See Hodges, 54 N.E.3d at 1060. Also, Smith cites Jarman v. State, which found that a consent to
      a search “without a warrant and without probable cause” did not unambiguously authorize a search with no
      suspicion at all. 114 N.E.3d 911, 912 (Ind. Ct. App. 2018), trans. denied. Here, in addition to the Waiver of
      Fourth Amendment Rights, Smith executed the Consent to Search in which he waived “any and all
      objections” to a search. State’s Exhibit 1. Jarman does not require reversal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019                  Page 9 of 11
       Miranda. Moreover, in light of the nature and quantity of drug paraphernalia

       and drugs discovered in Smith’s residence, any error in admitting the

       challenged statements was harmless. See Kelley v. State, 825 N.E.2d 420, 428-

       429 (Ind. Ct. App. 2005) (holding that, even if the defendant’s admission to

       drug dealing involvement was admitted in violation of Miranda, the error was

       harmless beyond a reasonable doubt).


                                                         II.


[10]   Smith next claims the evidence does not support the finding that he is an

       habitual offender. He argues that the links between the booking documentation

       and the records of conviction are too tenuous to support the habitual offender

       finding. The State argues that the admitted exhibits included identification in

       the form of court records, photographs, motor vehicle records, and social

       security information which together support the habitual offender finding.


[11]   Upon a challenge to the sufficiency of the evidence for an habitual offender

       determination, the appellate court neither reweighs the evidence nor judges the

       credibility of the witnesses; rather, we examine only the evidence most

       favorable to the judgment, together with all of the reasonable and logical

       inferences to be drawn therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct.

       App. 2010), trans. denied. The habitual offender determination will be sustained

       on appeal so long as there is substantial evidence of probative value supporting

       the judgment. Id. Ind. Code § 35-50-2-8 provides in part that a person

       convicted of a level 1 through level 4 felony is a habitual offender if the State


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 10 of 11
       proves beyond a reasonable doubt that: (1) the person has been convicted of two

       prior unrelated felonies; and (2) at least one of the prior unrelated felonies is not

       a level 6 felony or a class D felony.


[12]   State’s Exhibit 40 contained documentation related to a level 6 felony

       conviction. State’s Exhibit 41 contained documentation related to a class B

       felony conviction. State’s Exhibits 37 through 39 included Smith’s BMV

       records and jail records. The trial court found the photographs, name, date of

       birth, and social security information where available was the same throughout

       the documents and that the driver’s license number was reflected on documents

       for both prior causes. We conclude the State presented evidence of probative

       value from which the trier of fact could have found Smith was an habitual

       offender.


[13]   For the foregoing reasons, we affirm.


[14]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-407 | December 6, 2019   Page 11 of 11
