                                                                        FILED
                                                                   Aug 10 2020, 9:15 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                        Jeffrey A. Baldwin
Attorney General of Indiana                                Tyler D. Helmond
                                                           Indianapolis, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          August 10, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           20A-CR-61
        v.                                                 Appeal from the Marion Superior
                                                           Court
Jarrel Luke Ellis,                                         The Honorable Jennifer Harrison,
Appellee-Defendant.                                        Judge
                                                           Trial Court Cause No.
                                                           49G20-1906-F2-24884



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020                            Page 1 of 12
                                              Case Summary
[1]   The State appeals the trial court’s order granting Jarrel Ellis’ motion to suppress

      evidence seized as a result of a compliance check of Ellis’ residence while Ellis

      was serving a community corrections sentence. We reverse and remand.


                                                       Issue
[2]   The State raises one issue for our review, which we revise and restate as

      whether the trial court erred by granting Ellis’ motion to suppress.


                                                      Facts
[3]   The relevant events occurred in 2019, as Ellis was serving a home detention

      sentence with Marion County Community Corrections (“Community

      Corrections”), following Ellis’ guilty plea for dealing in cocaine, a Class B

      felony. Pursuant to Ellis’ Community Corrections placement, Ellis signed a

      “Marion County Community Corrections Contract.” State’s Ex. 2. The

      Contract provided, in relevant part:


              You waive your right against search and seizure, and shall permit
              MCCC staff, or any law enforcement officer acting on 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.


      Id. Jameil Parker, Ellis’ case manager for Community Corrections, began to

      monitor Ellis in January 2019. Parker developed suspicions regarding Ellis’

      compliance with the terms of the Contract because Ellis “requested to visit


      Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020          Page 2 of 12
      expensive restaurants while he was workin[g] a part-time temp[orary] service

      job. . . .” Tr. Vol. II pp. 5-6. Parker shared her suspicions with Jill Jones, a

      Community Corrections law enforcement liaison, and asked Jones to complete

      a compliance check at Ellis’ home.


[4]   On June 20, 2019, Jones went to Ellis’ residence with “the Northwest Flex

      Team” of law enforcement officers to complete the compliance check. 1 Tr. Vol.

      II p. 25; Appellant’s App. Vol. II p. 12. The Flex Team conducted a

      “protective sweep” to ensure the safety of the Flex Team and the compliance

      officer before starting the compliance check. Appellant’s App. Vol. II p. 13. In

      Ellis’ bedroom, the officers observed: (1) a plastic container with a green leafy

      substance, which the officers believed to be marijuana; and (2) a fake book with

      a hidden compartment that held several bundles of cash. The officers ended the

      compliance check of the residence and applied for a search warrant. When the

      officers executed the search warrant, the ensuing search yielded several

      weapons; a substance believed to be cocaine; paraphernalia consistent with

      drug dealing; digital scales; and a large amount of cash.


[5]   On June 24, 2019, the State charged Ellis with: Count I, dealing in cocaine, a

      Level 2 felony; Count II, possession of cocaine, a Level 3 felony; Counts III,

      IV, V, VI, and VII, unlawful possession of a firearm by a serious violent felon,

      Level 4 felonies; Count VIII, neglect of a dependent, a Level 5 felony; Count




      1
       Jones testified that the Northwest Flex Team included Scott Nichols, Chris Chatman, Officer Chin, Officer
      Soloman, and Tiffany Wren. Jones also testified that she does not conduct compliance checks alone.

      Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020                               Page 3 of 12
      IX, escape, a Level 6 felony; Count X, possession of a controlled substance, a

      Level 6 felony; and Count XI, possession of marijuana, a Class A

      misdemeanor.


[6]   On December 4, 2019, Ellis filed a motion to suppress the evidence seized

      during the search of his home. Ellis argued that the search violated his rights

      under Article 1, Section 11 of the Indiana Constitution and the Fourth

      Amendment to the United States Constitution because: (1) the Community

      Corrections Contract did not unambiguously provide that Ellis waived his

      rights against a suspicionless search; and (2) law enforcement did not have

      reasonable suspicion to search Ellis’ home.


[7]   At the hearing on December 10, 2019, the trial court orally granted Ellis’

      motion to suppress. Specifically, the trial court found that the Community

      Corrections Contract did not include a waiver of searches without reasonable

      suspicion. The State now appeals pursuant to Indiana Code Section 35-38-4-

      2(5). 2




      2
          The statute provides:

                 Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken
                 by the state in the following cases: . . .
                          (5) From an order granting a motion to suppress evidence, if the ultimate effect of the order
                          is to preclude further prosecution of one (1) or more counts of an information or
                          indictment.
      Ind. Code § 35-38-4-2(5). The State contends that the “suppression of evidence prevents the State from going
      forward on the charges.” Appellant’s Br. p. 4.

      Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020                                     Page 4 of 12
                                                       Analysis
[8]    The State argues that the trial court improperly granted Ellis’ motion to

       suppress.


                When the State appeals from a negative judgment, it bears the
                burden to show that the trial court’s ruling on the suppression
                motion was contrary to law. . . . We evaluate the trial court’s
                findings of fact deferentially, neither reweighing the evidence nor
                reassessing the credibility of the witnesses. . . . We will affirm if
                we find within the record substantial evidence of probative value
                to support the judgment. . . . But we review the trial court’s
                conclusions of law, . . . de novo.


       State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017) (citations and quotations

       omitted).


[9]    The issue for our determination is not whether there was reasonable suspicion

       to search Ellis’ home, but only whether, based upon the terms of the

       Community Corrections Contract, Ellis waived his right to challenge the

       search. 3 The trial court held that, notwithstanding the Contract, Community

       Corrections lacked reasonable suspicion to search Ellis’ home.


[10]   In State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), our Supreme Court clarified

       the law regarding searches of probation and community corrections




       3
        Neither Ellis nor the State make separate arguments that the analysis is different on this issue between the
       Indiana Constitution and the Fourth Amendment on this issue; therefore, we need not address the issue in
       our opinion.

       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020                                   Page 5 of 12
       participants. 4 Vanderkolk resided with Jordan Sullivan, who was on home

       detention through a community corrections program. Community corrections

       officers conducted a “routine warrantless search to assure Sullivan’s compliance

       with the conditions of the program.” Vanderkolk, 32 N.E.3d at 776. The search

       of the home revealed illegal drugs and paraphernalia, and Vanderkolk was

       charged as a result. The trial court denied Vanderkolk’s motion to suppress the

       evidence found in the common areas of the home because the officers “had

       consent to search.” Id. The trial court, however, granted the motion to

       suppress evidence found in Vanderkolk’s private bedroom.


[11]   The State appealed and relied on Samson v. California, 547 U.S. 843, 126 S. Ct.

       2193 (2006), for the proposition that the search did not violate the Fourth

       Amendment of the United States Constitution because of Sullivan’s community

       corrections status and Sullivan’s consent to the search. Vanderkolk countered

       that: (1) a person in a probation or community corrections home detention

       program is entitled to Fourth Amendment protections; and (2) officers must

       have reasonable suspicion of either criminal activity or a violation to conduct a

       compliance check.


[12]   On appeal, our Supreme Court acknowledged that: (1) a trial court may place a

       person on home detention as part of a community corrections program, see Ind.

       Code § 35-38-2.6-4.5; (2) “[p]lacement under either probation or a community



       4
        For purposes of the Supreme Court’s opinion in Vanderkolk, our Supreme Court noted that the terms
       “probation” and “community corrections” would be used interchangeably.

       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020                             Page 6 of 12
       corrections program is a ‘matter of grace and a conditional liberty that is a

       favor, not a right[,]’” Vanderkolk, 32 N.E.3d at 777 (quoting Cox v. State, 706

       N.E.2d 547, 549 (Ind. 1999)); and (3) probation searches “are necessary to the

       promotion of legitimate [state] interests.” Id. at 779.


[13]   In analyzing Samson, the Court held: “Samson dispenses with the need for

       reasonable suspicion where there exists a valid parole search condition

       permitting such searches, it does not authorize suspicionless searches based on

       a parolee’s status alone.” Id. Although Samson involved a parole search

       condition, whereas Vanderkolk involved a search pursuant to a home detention

       placement, our Supreme Court found Samson instructive. The Court held:


               Because probation, like parole, involves the conditional release of
               a prisoner who would otherwise be subject to unrestricted
               searches during his or her incarceration, because neither
               probationers nor parolees enjoy the absolute liberty to which
               other citizens are entitled, because probation searches are
               necessary to the promotion of legitimate government interests,
               because the willingness of judicial officers to grant conditional
               release is likely to be impaired if supervision is uncertain or
               difficult, and because searches of probationers or community
               corrections participants require that they be unambiguously
               informed of a clearly expressed search condition in the
               conditions of release to probation or community corrections, we
               conclude that the holding in Samson is applicable to probationers
               and community corrections participants. 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.


       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020               Page 7 of 12
       Id. at 779 (emphasis added).


[14]   After Vanderkolk, our Court decided Hodges v. State, 54 N.E.3d 1055 (Ind. Ct.

       App. 2016), which we find persuasive. In Hodges, the defendant signed the

       following acknowledgement of the terms of his probation: “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 properly

       may be found, to insure compliance with probation.” Hodges, 54 N.E.2d at

       1057. Officers then received several tips that Hodges was manufacturing

       methamphetamine. Subsequently, a warrantless search of Hodges’ garage

       yielded a weapon, a white crystal-like substance, and other items used to

       manufacture methamphetamine. Accordingly, the State charged Hodges with

       various drug offenses. Hodges filed a motion to suppress the seized evidence,

       which the trial court denied.


[15]   On appeal, Hodges argued that the search was not supported by reasonable

       suspicion. We noted: “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 . . . .” Id. at 1059.


[16]   In analyzing the terms of Hodges’ probation, our Court held that the language,

       “albeit somewhat minimal, was sufficient to constitute a clearly expressed


       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020          Page 8 of 12
       search condition, as it specifically advised Hodges that he was waiving his ‘right

       against search and seizure.’” Id. at 1061. Our Court further held:


               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.


       Id.


[17]   Here, pursuant to Ellis’ home detention placement, he agreed to the following:


               You waive your right against search and seizure, and shall permit
               MCCC staff, or any law enforcement officer acting on 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.


       State’s Ex. 2. This language is almost identical to the waiver provision in

       Hodges. As in Hodges, we conclude that this language was sufficient to waive

       Ellis’ rights against search and seizure and to authorize a suspicionless search.

       Accordingly, the officers did not need reasonable suspicion to search Ellis’

       residence.



       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020           Page 9 of 12
[18]   Despite the almost identical language, Ellis attempts to distinguish Hodges based

       upon Jarman v. State, 114 N.E.3d 911 (Ind. Ct. App. 2018), trans. denied.

       Jarman signed a community corrections agreement that provided as follows:


               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 Corrections or law enforcement officers to search
               my person or property without a warrant and without probable
               cause.


       Jarman, 114 N.E.3d at 913. Officers searched Jarman’s residence based on an

       anonymous tip and found a powdery substance on Jarman’s person,

       methamphetamine, and several other items. Jarman was charged with several

       drug offenses and moved to suppress the seized evidence. The trial court

       denied Jarman’s motion.


[19]   On appeal, our Court reversed the trial court’s denial of the motion to suppress

       and held:


               In arguing that Jarman waived all Fourth Amendment rights and
               consented to suspicionless searches, the State relies on the
               following passage in the waiver: “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.” Read in
               isolation, that language would certainly seem to support the
       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020       Page 10 of 12
               State's argument. However, that seemingly complete waiver
               must be read in light of the next sentence: “Specifically, I hereby
               consent to allow employees of Community Corrections or law
               enforcement officers to search my person or property without a
               warrant and without probable cause.” The use of the word
               “specifically” means that this second sentence defined the actual
               scope of Jarman’s waiver (and consent) made in the first
               sentence. Under Vanderkolk, then, the question we must answer
               is whether a waiver that allows searches “without a warrant and
               without probable cause” also “unambiguously authorizes”
               suspicionless searches. We hold that it does not.


       Id. at 914-15 (emphasis in original). Our Court went on to conclude that, “[i]f

       the State wanted Jarman to be subject to suspicionless searches as a condition

       of entering community corrections, it should have included in its waiver form

       language like ‘without suspicion,’ ‘without reasonable suspicion,’ ‘without

       reasonable cause,’ or ‘without cause.’” Id. at 915 (citations omitted).


[20]   We respectfully disagree with the reasoning and outcome in Jarman. The

       language of the community corrections agreement in Jarman waived any

       requirement for a warrant, and the agreement was not required to specifically

       mention a waiver of “reasonable suspicion.” Moreover, even if the reasoning in

       Jarman is correct, we do not find Jarman applicable here. Jarman held that the

       second sentence in Jarman’s contract limited the scope of the waiver to exclude

       suspicionless searches; whereas Ellis’ Contract does not contain comparable

       limiting language. Accordingly, Ellis’ reliance upon Jarman is misplaced.


[21]   Our Supreme Court has held that community corrections participants “who

       have consented or been clearly informed that the conditions of their . . . community

       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020               Page 11 of 12
       corrections program unambiguously authorize warrantless and suspicionless searches

       may thereafter be subject to such searches during the period of their . . .

       community corrections status.” Vanderkolk, 32 N.E.3d at 779 (emphasis

       added). As in Hodges, Ellis’ Community Corrections Contract unambiguously

       authorized warrantless and suspicionless searches, without limitation.

       Accordingly, the officers did not need reasonable suspicion to search Ellis’

       residence. The trial court’s decision to grant Ellis’ motion to suppress was

       erroneous.


                                                  Conclusion
[22]   The trial court improperly granted Ellis’ motion to suppress. We reverse and

       remand to the trial court to enter an order consistent with our opinion.


[23]   Reversed and remanded.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020            Page 12 of 12
