      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                      Feb 20 2015, 9:37 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Paul J. Podlejski                                         Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Larry D. Allen
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Larry Marshall,                                          February 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A02-1406-CR-459
              v.                                               Appeal from the Madison Circuit
                                                               Court
                                                               The Honorable David A. Happe,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Case No. 48C04-1106-FC-1173




      Crone, Judge.



                                               Case Summary
[1]   Larry Marshall pled guilty to class C felony dealing in marijuana and was

      sentenced to eight years in the Department of Correction, with two years at a

      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015   Page 1 of 9
      work-release center, two years of home detention, and four years suspended to

      probation. Marshall signed a work-release program contract that prohibited

      possession of drugs in his vehicle, waived “any right against search and

      seizure,” and authorized the center’s staff to search his vehicle. Defendant’s

      Ex. A. Marshall’s vehicle was searched without a warrant, resulting in the

      seizure of drugs and over $5000 in cash.


[2]   The State filed a petition to terminate Marshall’s work-release placement and a

      notice of violation of the conditions of his sentence. Marshall filed a motion to

      suppress the evidence seized during the search, arguing that the search was

      unconstitutional. The trial court denied Marshall’s motion and admitted the

      evidence at an evidentiary hearing. The trial court found that Marshall violated

      the conditions of his sentence and revoked his work-release placement and

      suspended sentence.


[3]   On appeal, Marshall argues that the trial court erred in admitting the evidence

      seized from his vehicle because the search was not supported by reasonable

      suspicion and therefore violated the Fourth Amendment to the U.S.

      Constitution. We disagree and therefore affirm the trial court.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015   Page 2 of 9
                                  Facts and Procedural History1
[4]   The relevant facts are undisputed. In September 2013, Marshall pled guilty to

      class C felony dealing in marijuana. The trial court sentenced Marshall to eight

      years in the Department of Correction, with two years at the Madison County

      Work Release Center, two years of home detention, and four years suspended

      to probation. In October 2013, Marshall signed and initialed a three-page

      work-release program contract containing many obligations and restrictions,

      including these:

              I agree to allow the Work Release Program to make reasonable inquiry
              into my activities. I agree to waive any right against search and
              seizure, and permit Work Release Staff or any law enforcement officer
              acting on behalf of the Work Release Program to search my person,
              motor vehicle or any location where my personal property may be
              found, to [e]nsure compliance with the Work Release rules and
              regu[l]ations.

              I will not consume, or possess on my person, or in my vehicle, any
              alcohol or drugs. I will submit to drug and alcohol tests immediately
              upon request. Failure to submit to a test or tests will be considered an
              admission of guilt.…

              ….

              I understand I can never be out of the Work Release facility for 16
              hours or more in one 24 hour period. I understand that a failure to
              return to the Work Release Center is [a] violation of this rule and I
              may be subject to prosecution for the crime of Escape I.C. 35-44-3-5.




      1
       We remind Marshall’s counsel that an appellant’s statement of facts “shall be in narrative form and shall
      not be a witness by witness summary of the testimony.” Ind. Appellate Rule 46(A)(6)(c).

      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015           Page 3 of 9
              ….


              I agree to travel in a direct route to and from my place of employment
              or any other permitted destination without making any stops or “side
              trips”, and have no unauthorized passengers in my vehicle.…


              ….


              As a condition of Work Release and any suspended sentence, I agree
              to observe the above regulations. I further acknowledge that I have
              initialed each and every term of this program contract.


              ….


              This contract has been read/explained to me and I have been given
              time to ask questions. My signature below acknowledges that I have
              fully read and understand all terms and conditions of this contract.


      Id.


[5]   At the beginning of December 2013, drugs were found offsite in the car of one

      of the work-release center’s inmates. This led the center’s staff to believe that

      “there was a potential that other participants in work release could be doing the

      same” and prompted the staff to start searching other inmates’ vehicles. Tr. at

      26. Around 7:45 p.m. on December 13, 2013, Marshall entered the work-

      release center, presumably after returning from his place of employment, and

      was told by staff at the main control desk that his vehicle would be searched

      later that evening. He relinquished his keys and “went into the dormitory.” Tr.

      at 35. Marshall later returned to the control desk, claimed that he had

      “sustained an injury,” and asked to be allowed to drive his vehicle to the

      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015   Page 4 of 9
      hospital. Id. at 31. His request was denied, and his vehicle was searched by the

      center’s staff without a warrant. The search revealed prescription pill bottles

      bearing other persons’ names, Xanax and hydrocodone pills, digital scales, and

      over $5000 in cash. Police later interviewed Marshall, who signed a Miranda

      waiver form and admitted purchasing pills but denied selling them.


[6]   Based on the foregoing, the State filed a petition to terminate Marshall’s work-

      release placement and a notice of violation of the conditions of his sentence.

      Marshall filed a motion to suppress, arguing that the evidence found in his

      vehicle and his statement were obtained as the result of an unconstitutional

      search. The trial court denied Marshall’s motion to suppress and admitted the

      evidence at an evidentiary hearing. The trial court found that Marshall violated

      the conditions of his sentence, revoked his work-release placement and

      suspended sentence, and ordered him to serve his sentence in the Department

      of Correction. This appeal followed.


                                     Discussion and Decision
[7]   Marshall contends that the trial court erred in finding that he violated the

      conditions of his sentence. More specifically, Marshall asserts that the court

      erred in admitting the evidence found during the search of his vehicle, which he




      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015   Page 5 of 9
      claims violated the Fourth Amendment to the U.S. Constitution.2 “[U]nder the

      exclusionary rule, evidence obtained pursuant to an illegal search is

      inadmissible at trial.” Blankenship v. State, 5 N.E.3d 779, 782 (Ind. Ct. App.

      2014). “A trial court’s decision to admit or exclude evidence is reviewed for an

      abuse of discretion. A trial court abuses its discretion when its decision is

      clearly against the logic and effect of the facts and circumstances or when the

      trial court has misinterpreted the law.” J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct.

      App. 2014) (citation omitted). “The constitutionality of a search is a question

      of law, which we review de novo.” Id.3


[8]   The Fourth Amendment provides,

               The right of the people to be secure in their persons, houses, papers,
               and effects, against unreasonable searches and seizures, shall not be
               violated, and no warrants shall issue, but upon probable cause,
               supported by oath or affirmation, and particularly describing the place
               to be searched, and the persons or things to be seized.




      2
         Marshall also claims that the search violated Article 1, Section 11 of the Indiana Constitution, but he offers
      no separate analysis on this point. Therefore, this argument is waived. See Russell v. State, 993 N.E.2d 1176,
      1181 (Ind. Ct. App. 2013) (“Failure to provide separate analysis of Indiana and United States constitutional
      claims under Article 1, Section 11 and the Fourth Amendment, respectively, results in waiver.”). Marshall
      cites and quotes Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), but he neither articulates nor applies its three-
      part balancing test for reasonableness. As an impartial tribunal, it is not our job to make Marshall’s
      argument for him.
      3
        Marshall asserts, and the State does not dispute, that his statement to police about buying the drugs found
      in his vehicle was derived from the search of the vehicle and thus would be subject to exclusion under the
      “fruit of the poisonous tree” doctrine if the search was unconstitutional. See, e.g., Wong Sun v. United States,
      371 U.S. 471, 485 (1963) (“[V]erbal evidence which derives so immediately from an unlawful entry … is no
      less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.”).
      Because the search was constitutional, Marshall’s statement was admissible.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015                Page 6 of 9
      “The Fourteenth Amendment makes this protection applicable to actions by

      state officials.” Hensley v. State, 962 N.E.2d 1284, 1288 (Ind. Ct. App. 2012).

      The “‘touchstone of the Fourth Amendment is reasonableness[,]’” which is

      “measured in objective terms by examining the totality of the circumstances.”

      Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S.

      248, 250 (1991)).


[9]   In United States v. Knights, 534 U.S. 112 (2001), the U.S. Supreme Court held

      that a warrantless search of a probationer’s apartment was reasonable under the

      Fourth Amendment because it was “supported by reasonable suspicion and

      authorized by a condition of probation” that obligated the probationer to

      “[s]ubmit his … person, property, place of residence, vehicle, personal effects,

      to search at anytime, with or without a search warrant, warrant of arrest or

      reasonable cause by any probation officer or law enforcement officer.” Id. at

      122, 114 (alterations in Knights). Marshall essentially concedes that, as an

      inmate of a work-release center subject to a search condition, he is situated

      similarly to the probationer in Knights. Therefore, he argues, any warrantless

      search of his property must be supported by reasonable suspicion.4 He further

      argues that no reasonable suspicion existed in this case, and therefore the trial




      4
        See Appellant’s Br. at 17 (“As a participant of Work Release Marshall was in a Community Corrections
      program, thus situated the same as a probationer would be. As such, a warrantless search must be justified
      on the basis of reasonable suspicion.”). Marshall argues that the search condition is unconstitutionally
      overbroad because it authorizes suspicionless searches. Because we conclude that the search of Marshall’s
      vehicle was supported by reasonable suspicion, we need not address this argument. We note that the
      reasoning of the cases cited by Marshall for this proposition was called into doubt by Kopkey v. State, 743
      N.E.2d 331, 335-36 (Ind. Ct. App. 2001), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015           Page 7 of 9
       court erred in admitting the evidence found during the search of his vehicle.

       We need not address Marshall’s first argument because we disagree with the

       second.5


[10]   We have explained that

                [t]he reasonable suspicion standard is less demanding than probable
                cause and requires a showing considerably less than a preponderance
                of the evidence, but it still requires at least a minimal level of objective
                justification and more than an inchoate and unparticularized suspicion
                or hunch of criminal activity. When reviewing a determination of
                reasonable suspicion to support a warrantless search, the court
                examines the totality of the circumstances to see whether the officer
                had a particularized and objective basis for suspecting legal
                wrongdoing. The reasonable suspicion requirement is satisfied when
                the facts known to the officer, together with the reasonable inferences
                arising from such facts, would cause an ordinarily prudent person to
                believe that criminal activity has occurred or is about to occur.


       Teague v. State, 891 N.E.2d 1121, 1128 (Ind. Ct. App. 2008) (citations omitted).


[11]   Correctional Officer Mason Brizendine testified that Marshall’s request to drive

       his vehicle to the hospital after being informed that it would be searched later

       that evening “gave [Brizendine] reasonable suspicion that there might be




       5
         In Samson v. California, 547 U.S. 843 (2006), the U.S. Supreme Court held that a suspicionless warrantless
       search of a parolee subject to a statutory search condition did not violate the Fourth Amendment. Samson
       does not bode well for Marshall’s argument that a warrantless search of the property of a work-release inmate
       subject to a contractual search condition must be supported by reasonable suspicion. To the extent that
       Marshall relies on State v. Vanderkolk, 10 N.E.3d 585 (Ind. Ct. App. 2014), trans. granted, which he
       inaccurately attributes to the Indiana Supreme Court, Appellant’s Reply Br. at 3, we note that our supreme
       court granted transfer in that case before Marshall filed his reply brief, thereby vacating this Court’s decision,
       and heard oral argument on January 21, 2015.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015               Page 8 of 9
       something in [the] vehicle that didn’t belong.” Tr. at 31. We agree.6

       Therefore, we conclude that the warrantless search of Marshall’s vehicle did not

       violate the Fourth Amendment and thus the trial court did not abuse its

       discretion in admitting the evidence found during the search. Consequently, we

       affirm.


[12]   Affirmed.


       Friedlander, J., and Kirsch, J., concur.




       6
         Marshall cites no authority for his argument that reasonable suspicion cannot be based on conduct that
       occurs after an officer announces his intent to perform an allegedly unconstitutional search at some point in
       the future. Therefore, this argument is waived. See Matthews v. State, 866 N.E.2d 821, 826 (Ind. Ct. App.
       2007) (finding argument waived based on appellant’s failure to cite relevant authority) (citing Ind. Appellate
       Rule 46(A)(8)(a)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-459 | February 20, 2015             Page 9 of 9
