                                                                                   FILED
                                                                           Sep 25 2019, 5:42 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Deborah Markisohn                                          Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Chandra K. Hein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kurt McElroy,                                              September 25, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2930
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Mark D. Stoner,
      Appellee-Plaintiff.                                        Judge
                                                                 The Honorable Jeffrey L. Marchal,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 49G06-1711-F4-43515



      Barteau, Senior Judge.


                                       Statement of the Case
[1]   Kurt McElroy brings this interlocutory appeal from the trial court’s denial of his

      motion to suppress. We affirm.

      Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019                           Page 1 of 14
                                                      Issue
[2]   McElroy presents one issue for our review, which we restate as whether the

      search of his home violated his federal and state constitutional rights.


                                Facts and Procedural History
[3]   Demarqus Whitley, McElroy’s step-son, was placed on home detention through

      Marion County Community Corrections (MCCC) in October 2017. Several of

      the community corrections program conditions to which Demarqus agreed

      provide:


              If you do not own, rent or lease the residence in which you
              reside, you must advise the owner(s) of the residence of the
              conditions of Electronic Monitoring.


              You must not possess alcohol or non-prescribed drugs on your
              person, in your residence or in your property at any time. The
              residence in which you are residing must be alcohol and non-
              prescribed drug-free as well. If other residents fail to comply, you
              will be required to move.


              You waive your right against search and seizure, and shall permit
              MCCC staff, or any law enforcement officer acting on a [sic]
              MCCC’s behalf, to search your person, residence, motor vehicle,
              or any location where your personal property may be found, to
              insure compliance with the requirements of community
              corrections.


              You must not use, purchase or possess weapons, firearms, or
              ammunition. Any weapons, firearms, or ammunition found in
              the residence where you reside will be confiscated and will result
              in the immediate filing of a Notice of Violation with the Court.
      Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019     Page 2 of 14
              There are to be no weapons in the residence regardless if any
              residents have a valid weapon permit.


      Ex. Vol., State’s Ex. 1, p. 4. While Demarqus was participating in the program,

      he resided at the home of his mother, Tamika Whitley, and her husband,

      McElroy. The living arrangements were such that Demarqus slept on the

      couch in the living room, kept his belongings next to the couch and in a closet

      in the living room, and used the downstairs bathroom.


[4]   On November 7, 2017, Jill Jones, law enforcement liaison with MCCC, and

      several police officers conducted a home visit to ensure Demarqus’ compliance

      with his home detention conditions. At the door of the residence, Jones

      explained to McElroy and Demarqus that she was there to perform a home

      visit. Immediately upon entering the residence, Jones and the officers smelled

      the odor of burnt marijuana. The officers then began to perform a routine

      sweep of the house for safety. While performing the protective sweep, the

      officers observed a green leafy substance, thought to be marijuana, in plain view

      on the half wall of the staircase.


[5]   The officers also encountered a locked bedroom door upstairs. They asked for

      the key to unlock the door but were informed that it was the bedroom of an

      older daughter who had the key and was at work. Tamika told the officers that

      no one was in the bedroom and that they could kick in the door if necessary,

      but the officers declined to do so. McElroy assisted the officers by using some

      tools to unlock the door, and the officers were then able to check the room for

      safety purposes.
      Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019   Page 3 of 14
[6]   As the officers were performing the safety sweep, Tamika recorded video

      footage on her cell phone, which was later transferred to a flash drive and

      admitted as an exhibit at the suppression hearing. Tamika can be heard on the

      video stating that Demarqus lives in the front room, that all of his belongings

      are downstairs, and that the area of the couch is “his area.” Ex. Vol.,

      Defendant’s Ex. D. At the suppression hearing, she testified that she told Jones

      and the officers they could search Demarqus’ “area.” Tr. Vol. II, p. 49.


[7]   Upon completing the protective sweep, two officers were in the kitchen

      discussing how to proceed given the odor of the burnt marijuana and the

      discovery of the marijuana leaves. At that time, one of the officers discovered a

      handgun on top of a kitchen cabinet. McElroy told the officers that the gun was

      his. Following the discovery of the handgun, one of the officers spoke with

      Tamika, and she signed a consent to search. The officers performed a search of

      the house, during which they found a bag of marijuana in a dresser drawer in

      the master bedroom.


[8]   Based upon these events, the State charged McElroy with unlawful possession
                                                                               1
      of a firearm by a serious violent felon, a Level 4 felony, and possession of
                                                      2
      marijuana, a Class A misdemeanor. McElroy filed a motion to suppress, and,




      1
          Ind. Code § 35-47-4-5 (2017).
      2
          Ind. Code § 35-48-4-11 (2017).


      Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019       Page 4 of 14
       following a hearing, the trial court entered its findings and order denying the

       motion. This interlocutory appeal ensued.


                                     Discussion and Decision
[9]    McElroy contends the trial court erred in failing to suppress the handgun found

       in the kitchen and the bag of marijuana found in the master bedroom because

       these items were seized as a result of a warrantless search that violated his

       federal and state constitutional rights. The State argues that, because

       Demarqus gave his consent for a search of his residence and agreed to inform

       the owners of his residence of his home detention conditions, the officers had

       authority to search McElroy’s residence.


[10]   We review the denial of a motion to suppress similar to other sufficiency

       matters. Primus v. State, 813 N.E.2d 370, 373 (Ind. Ct. App. 2004). When

       reviewing a trial court’s denial of a defendant’s motion to suppress, we examine

       whether substantial evidence of probative value exists to support the court’s

       decision. Berry v. State, 121 N.E.3d 633, 636-37 (Ind. Ct. App. 2019), trans.

       denied. We neither reweigh the evidence nor judge the credibility of witnesses;

       rather, we consider the evidence most favorable to the ruling together with any

       adverse evidence that is uncontradicted. Primus, 813 N.E.2d at 373.

       Nevertheless, the constitutionality of a search or seizure is a question of law,

       which we review de novo. Wertz v. State, 41 N.E.3d 276, 279 (Ind. Ct. App.

       2015), trans. denied.




       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019    Page 5 of 14
                                                  A. Handgun
                                             1. Fourth Amendment

[11]   The Fourth Amendment to the United States Constitution protects people from

       unreasonable search and seizure. U.S. CONST. amend. IV. A search warrant is

       generally a prerequisite to a constitutionally proper search and seizure. Halsema

       v. State, 823 N.E.2d 668, 676 (Ind. 2005). When a search is conducted without

       a warrant, the burden is on the State to prove that an exception to the warrant

       requirement existed at the time of the search. Id. One such exception is a valid

       consent to search. Primus, 813 N.E.2d at 374. Our Supreme Court has

       specifically recognized an exception to the warrant requirement in a search of

       the residence of a probationer or community corrections participant where the

       probationer or participant has in advance, by valid consent or term in

       conditions of release, authorized a warrantless, suspicionless search. State v.

       Vanderkolk, 32 N.E.3d 775, 780 (Ind. 2015).


[12]   As set out above, Demarqus’ home detention conditions contained a waiver of

       his right against search and seizure of his person and residence to ensure his

       compliance with the requirements of his home detention. McElroy does not

       contest the validity of that waiver as it applies to Demarqus. However, the

       residence in which Demarqus was staying was not his residence; rather, the

       residence belongs to McElroy and Tamika, and neither of them were on

       probation or home detention or had signed a search waiver. Thus, McElroy

       argues that Demarqus’ search waiver does not provide the authority for a search

       of McElroy’s residence. Consequently, we must examine the privacy rights of

       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019   Page 6 of 14
                                                                      3
       individuals who have a community corrections participant living in their

       residence.


[13]   It is well-established in this state that consent to search may be given by a third

       party who has common authority over the premises. Walker v. State, 986

       N.E.2d 328, 334 (Ind. Ct. App. 2013), trans. denied.


               Common authority rests on the mutual use of the property by
               persons generally having joint access or control for most
               purposes, so that it is reasonable to recognize that any of the
               cohabitants has the right to permit the inspection in his or her
               own right and that the others have assumed the risk that one of
               their number might permit the common area to be searched.


       Id. (quoting Hill v. State, 825 N.E.2d 432, 436 (Ind. Ct. App. 2005)). On this

       specific issue, a leading Fourth Amendment treatise instructs:


               If the probationer or parolee is sharing living quarters with
               someone else not on conditional release, the search may
               nonetheless extend to all parts of the premises to which the
               probationer or parolee has common authority. “A warrantless
               search of a parolee may result in an invasion of privacy, at least
               to some extent, for those living with the parolee. If the Fourth
               Amendment rights of nonparolees living with parolees were not
               reduced, a parolee could avoid all warrantless parole searches by
               living with a nonparolee and asserting the nonparolee’s




       3
        Although Demarqus was on home detention through the community corrections program, our decision
       applies equally to community corrections participants and probationers. See, e.g., Vanderkolk, 32 N.E.3d at
       780 (treating community corrections participants and probationers the same in holding that “[a] probationer
       or community corrections participant may, pursuant to a valid search condition or advance consent,
       authorize a warrantless premises search without reasonable suspicion”).

       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019                          Page 7 of 14
               constitutional rights, and thus emasculate one significant feature
               of the parole system.”


       5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §

       10.10(d) at 556-57 n.138 (5th ed. 2012) (quoting State v. Johnson, 748 P.2d 1069,

       1073 (Utah 1987), abrogated on other grounds).


[14]   As indicated by the excerpt above, consideration must also be given to the

       objectives of our conditional release system. Community corrections programs

       such as home detention serve as alternatives to imprisonment, and placement in

       these programs is a matter of grace and a conditional liberty that is a favor, not

       a right. Vanderkolk, 32 N.E.3d at 777. Participation in such programs “involves

       the conditional release of a prisoner who would otherwise be subject to

       unrestricted searches” during his incarceration and is conditioned upon

       compliance with certain terms or conditions. Id. at 779. Accordingly,

       supervision of participants, including searches, is necessary to ensure

       compliance with the terms and to promote legitimate government interests. Id.

       The United States Supreme Court has repeatedly acknowledged that a state has

       an “overwhelming interest” in “reducing recidivism and thereby promoting

       reintegration and positive citizenship among probationers and parolees [that]

       warrant[s] privacy intrusions that would not otherwise be tolerated under the

       Fourth Amendment.” Samson v. California, 547 U.S. 843, 853, 126 S. Ct. 2193,

       2200, 165 L. Ed. 2d 250 (2006).


[15]   Many jurisdictions acknowledge that non-participants who share a residence

       with conditional release participants assume the risk that they will have
       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019       Page 8 of 14
diminished Fourth Amendment rights in areas shared with the participant. See

State v. Stanfield, 554 S.W.3d 1 (Tenn. 2018) (warrantless parole search extended

to areas of residence shared by parolee and non-parolees and over which

parolee had common authority); State v. Bursch, 905 N.W.2d 884 (Minn. Ct.

App. 2017) (non-probationer who knowingly lives with probationer has

diminished expectation of privacy in areas of residence shared with

probationer); State v. Adams, 788 N.W.2d 619 (N.D. 2010) (due to terms of

probation, non-probationer who chose to live with probationer had reduced

expectation of privacy in their shared areas and possessions); People v. Pleasant,

19 Cal. Rptr. 3d 796 (Cal. Ct. App. 2004) (persons who live with probationers

cannot reasonably expect privacy in areas of residence shared with

probationers, including areas within common authority of probationer and

fellow occupants and areas that probationer “normally had access”); State v.

Davis, 965 P.2d 525 (Utah Ct. App. 1998) (where probationer lives with non-

probationer, probation searches present considerable peril to non-probationer’s

Fourth Amendment rights because authority to search probationer’s residence

extends to areas jointly controlled with other occupants of residence); Milton v.

State, 879 P.2d 1031 (Alaska Ct. App. 1994) (in case of shared residence, non-

probationer retains limited expectation of privacy in his person, possessions,

and residence; probation search may extend to all areas of residence over which

probationer has control, even if control is not exclusive); and State v. West, 517

N.W.2d 482 (Wis. 1994) (non-parolee’s reasonable expectation of privacy in

apartment she jointly occupied with parolee was limited such that parole search


Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019    Page 9 of 14
       could extend to all areas and contents in which parolee had common

       authority).


[16]   Here, the evidence at the suppression hearing demonstrates, and the trial court

       found, that the handgun was not in plain view. However, it was discovered in

       the kitchen, which McElroy does not dispute was a common area within the

       home to which Demarqus had access. In fact, the kitchen was adjacent

       to/attached to the living room where Demarqus was staying. He slept on the

       couch in the living room and kept his belongings next to the couch and in a

       nearby closet. Thus, by virtue of Demarqus’ community corrections

       conditions, he consented to searches of his person, residence, and possessions,

       which includes any areas of the residence over which he had common

       authority. This was a risk McElroy assumed by allowing Demarqus, a home

       detention participant, to live with him. Accordingly, McElroy’s Fourth

       Amendment rights were not violated by the officers’ search of the common

       areas of the residence, specifically the kitchen, and the subsequent seizure of the

       handgun.


                                             2. Article 1, Section 11

[17]   Like the Fourth Amendment, article 1, section 11 of the Indiana Constitution

       protects people from unreasonable search and seizure. IN CONST. art. 1, §11.

       Although the language of Section 11 mirrors the federal protection and appears

       to have been derived from the Fourth Amendment, we interpret and apply it

       independently from Fourth Amendment jurisprudence. State v. Bulington, 802

       N.E.2d 435, 438 (Ind. 2004). When evaluating Section 11 claims, we place the
       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019   Page 10 of 14
       burden on the State to show that the intrusion was reasonable under the totality

       of the circumstances. Id.


[18]   Here, we find the search reasonable under the totality of the circumstances.

       Jones and the officers were present in McElroy’s residence for a routine home

       visit to ensure Demarqus’ compliance with the conditions of his home

       detention, one of which was to abstain from non-prescription drugs and to live

       in a residence that was free of such substances. As soon as the officers entered

       the home, they detected the odor of burnt marijuana. In addition, they found

       marijuana leaves in plain view during the protective sweep of the residence.


[19]   Following the protective sweep of the residence, the officers located a handgun

       in a common area of the home. Demarqus had previously consented to

       warrantless, suspicionless searches of his person, residence, and possessions.

       By choosing to reside with Demarqus, McElroy had a limited expectation of

       privacy in the common areas of the residence. Under these circumstances, it

       was reasonable for the officers to search the common areas of McElroy’s

       residence based on Demarqus’ consent to search.


[20]   In summary, we hold that a person who agrees to house a community

       corrections participant retains a limited expectation of privacy in his residence

       and possessions. This is so because the participant’s person, residence, and

       possessions are subject to search, including common areas and common

       possessions. This rationale preserves the State’s legitimate interests of

       supervising participants, protecting the public from criminal acts by reoffenders,


       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019      Page 11 of 14
       and furthering its rehabilitative objectives. Indeed, without the resulting burden

       upon the privacy rights of non-participants, community corrections participants

       would have a substantial motive to reside with a non-participant, thereby

       thwarting the State’s ability to effectively monitor participants and carry out its

       governmental functions.


                                                 B. Marijuana
[21]   Upon finding the handgun, the officers asked Tamika for her consent to a

       search of the remainder of the house. Tamika signed a consent form, and the

       subsequent search produced a bag of marijuana from a dresser drawer in the

       master bedroom upstairs. McElroy claims the marijuana should be suppressed

       because Tamika’s consent to search was the product of the illegal search that

       produced the handgun. In his brief, he states that Tamika “felt compelled” to

       sign the consent form once the police discovered the handgun, but he provides

       no argument or citation to authority regarding the validity of her consent.

       Appellant’s Br. p. 25.


[22]   We first note we have determined that the search that lead to the discovery of

       the handgun was not illegal. Additionally, in its order denying McElroy’s

       motion to suppress, the trial court found that the officers obtained a valid

       consent to search from Tamika.


[23]   As we noted previously, one recognized exception to the warrant requirement is

       a valid consent to search. Primus, 813 N.E.2d at 374. When the State seeks to

       rely upon consent to justify a warrantless search, it bears the burden of proving

       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019    Page 12 of 14
       that the consent was freely and voluntarily given. Bulthuis v. State, 17 N.E.3d

       378, 383 (Ind. Ct. App. 2014), trans. denied. The voluntariness of the consent to

       search is to be determined from the totality of the circumstances. Crocker v.

       State, 989 N.E.2d 812, 820 (Ind. Ct. App. 2013), trans. denied.


               The “totality of the circumstances” from which the voluntariness
               of a detainee’s consent is to be determined includes, but is not
               limited to, the following considerations: (1) whether the
               defendant was advised of his Miranda rights prior to the request
               to search; (2) the defendant’s degree of education and
               intelligence; (3) whether the defendant was advised of his right
               not to consent; (4) whether the detainee has previous encounters
               with law enforcement; (5) whether the officer made any express
               or implied claims of authority to search without consent; (6)
               whether the officer was engaged in any illegal action prior to the
               request; (7) whether the defendant was cooperative previously;
               and (8) whether the officer was deceptive as to his true identity or
               the purpose of the search.


       Id. at 820-21 (quoting Callahan v. State, 719 N.E.2d 430, 435 (Ind. Ct. App.

       1999)). “A consent to search is valid except where it is procured by fraud,

       duress, fear, intimidation, or where it is merely a submission to the supremacy

       of the law.” Bulthuis, 17 N.E.3d at 383. This determination is a question of

       fact, and a reviewing court is ill-equipped to make factual determinations,

       especially where the evidence is conflicting. Id.


[24]   Although there is no indication that Tamika was advised of her Miranda rights

       or her right to refuse consent, she was not arrested or restrained in any way.

       Further, Tamika told the officers she is a nurse, and nothing in the record


       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019    Page 13 of 14
       suggests that she was unable to understand the consent form. At the

       suppression hearing, Tamika testified that one of the officers told her that if she

       did not cooperate she would go to jail and that they would get a warrant to

       search the house. The officers were at the home to assist with a home detention

       home visit and not engaged in illegal activity prior to asking for Tamika’s

       consent to search. Moreover, the officers were not deceptive as to their identity

       or the purpose of the search. We conclude that the totality of the circumstances

       supports the trial court’s ruling.


                                                 Conclusion
[25]   We affirm the trial court’s denial of McElroy’s motion to suppress the evidence

       found during the search of his home.


[26]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2930 | September 25, 2019   Page 14 of 14
