                                                                     Feb 27 2015, 10:32 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Thomas P. Keller                                           Gregory F. Zoeller
South Bend, Indiana                                        Attorney General of Indiana
                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tyrone Shelton,                                            February 27, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           71A03-1408-CR-309
        v.                                                 Appeal from the St. Joseph Superior
                                                           Court.

State of Indiana,                                          The Honorable Jane Woodward
                                                           Miller, Judge.
Appellee-Plaintiff.
                                                           Cause No. 71D01-0701-FC-22




Riley, Judge.




Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015                Page 1 of 11
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Tyrone D. Shelton, Jr. (Shelton), appeals his conviction

      of Count I, possession of marijuana, a Class A misdemeanor, Ind. Code § 35-

      48-4-11 (2006); Count II, possession of cocaine, a Class C felony, I.C. § 35-48-4-

      6(b)(1) (2006); and Count III, possession of a Schedule I controlled substance, a

      Class D felony, I.C. § 35-48-4-7(a) (2006).


[2]   We affirm.


                                                      ISSUE

[3]   Shelton raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by admitting evidence that was seized during the

      course of a warrantless search.


                            FACTS AND PROCEDURAL HISTORY

[4]   In 2004, following his conviction of Class A felony cocaine possession, Shelton

      received a twenty-year sentence. As an alternative to incarceration in the

      Indiana Department of Correction (DOC), the trial court ordered Shelton to

      serve his sentence in the DuComb Community Corrections of St. Joseph

      County (Community Corrections) in South Bend, Indiana. As a condition of

      his home detention/work release, Shelton was outfitted with an electronic

      monitoring device and required to report daily to his case manager, Judi Ross

      (Case Manager Ross).




      Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 2 of 11
[5]   On July 7, 2006, Shelton entered into a contract with Community Corrections,

      whereby he agreed to the terms governing his home detention. In part, Shelton

      “[c]onsent[ed] to allow [Community Corrections] staff and/or law enforcement

      officers to enter [his] residence at any time, without prior notice or warrant, to

      make reasonable inquiry into the activities of the residents of the home or assist

      in investigations of rule violations.” (State’s Exh. 1). He further “[a]gree[d] to

      submit to searches of person, residence, vehicle, or personal property at any

      time by staff or law enforcement officers.” (State’s Exh. 1). By signing the

      contract, Shelton acknowledged that his failure to abide by Community

      Corrections’ regulations could result in the revocation of his placement in order

      to serve the remainder of his sentence in the DOC.


[6]   On November 3, 2006, the Metro Special Operations Section—i.e., the

      narcotics unit for St. Joseph County—received an anonymous tip on the Crime

      Stoppers hotline that “Shelton was talking about having some marijuana in his

      house, and he was on house arrest or something like that, and the marijuana

      supposedly was stolen from a South Bend police car.” (Transcript p. 15). The

      information was passed on to Officer Charles Flanagan (Officer Flanagan) of

      the South Bend Police Department for further investigation.


[7]   A day or two earlier, Officer Flanagan learned that marijuana had, in fact, been

      stolen from a squad car. The theft was not released to the public, and only a

      few police officers were even aware of the incident. Officer Flanagan was privy

      to the information because he worked as a K-9 handler, and the stolen

      marijuana was intended to be used for training the drug-sniffing dogs. Because

      Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 3 of 11
      the informant had specifically mentioned Shelton’s house arrest through the

      DuComb Center, Officer Flanagan contacted Community Corrections, and

      Case Manager Ross verified that Shelton was serving a sentence on home

      detention. Case Manager Ross also stated that Shelton had signed a consent to

      have his house searched at any time, so she offered to do a surprise inspection.


[8]   At approximately 2:30 p.m., Case Manager Ross—along with Officer

      Flanagan, his K-9 partner Dixie (K-9 Dixie), and a few other officers—arrived

      at Shelton’s home, located at 55185 Melrose Avenue in South Bend. Case

      Manager Ross explained the purpose of the search to Shelton, and Shelton

      denied that there were any narcotics in the home. Officer Flanagan then

      escorted K-9 Dixie throughout the house and the attached garage. K-9 Dixie,

      who was trained to detect eight types of drugs, did not indicate that any drugs

      were present inside the house. Once in the garage, K-9 Dixie detected an odor

      and “worked her way back to a cooler . . . and she started alerting on the cooler

      by scratching at it[,] knocking it over.” (Tr. p. 112).


[9]   Inside the cooler, Officer Flanagan found a plastic grocery bag containing seven

      “bags of a green leafy substance which I immediately recognized to be

      marijuana, and there were two smaller bags. One was an off-white substance,

      and another one was a couple of pills.” (Tr. p. 112). There was also a digital

      scale in the cooler. A field test confirmed that the leafy substance was

      marijuana, but the officers were advised not to arrest Shelton until after the

      evidence could be submitted for chemical and fingerprint analyses.



      Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 4 of 11
[10]   Further testing confirmed that the bag of white powder consisted of 4.04 grams

       of cocaine. The three pills were identified as Ecstasy (MDMA) tablets and had

       a net weight of 0.92 grams. The marijuana weighed a total of 428 grams. In

       addition, a fingerprint analyst concluded that two latent fingerprints found on

       two of the clear plastic marijuana bags were left by Shelton, and one of the

       fingerprints found on the plastic grocery bag contained “similarities in the

       pattern, in the flows, to Mr. Shelton. But it came short of having a sufficient

       amount of minutia or detail to make an identification.” (Tr. p. 150).


[11]   On January 25, 2007, the State filed an Information charging Shelton with

       Count I, possession of marijuana, a Class D felony, I.C. § 35-48-4-11 (2006);

       Count II, possession of cocaine, a Class C felony, I.C. § 35-48-4-6(b)(1) (2006);

       and Count III, possession of a Schedule I controlled substance, a Class D

       felony, I.C. § 35-48-4-7(a) (2006). On April 1, 2014, Shelton filed a motion to

       suppress “any and all items of evidence seized . . . on the grounds that said

       seizure was done without warrant and beyond the terms of his contract with

       [Community Corrections].” (Appellant’s App. p. 89). On April 4, 2014, the

       trial court held a hearing and denied Shelton’s motion.


[12]   On July 28 and 29, 2014, a jury trial was conducted. At the close of the

       evidence, the jury returned a verdict of guilty on all Counts.1 On August 26,




       1
         Shelton was initially charged with Count I, possession of marijuana as a Class D felony, but during closing
       arguments, the State discovered that it had omitted the evidence to establish that the total weight of the
       marijuana exceeded thirty grams. Therefore, the parties agreed that the charge should be reduced to the
       lesser included Class A misdemeanor offense, for which the jury found him guilty.

       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015                     Page 5 of 11
       2014, the trial court sentenced Shelton to concurrent terms of one year on

       Count I, five years on Count II, and two years on Count III.


[13]   Shelton now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                               I. Standard of Review

[14]   Shelton claims that the trial court erred when it denied his motion to suppress

       the evidence seized during the warrantless search of his property. However,

       Shelton appeals from a completed trial, and “[d]irect review of the denial of a

       motion to suppress is only proper when the defendant files an interlocutory

       appeal.” Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). Therefore, this

       “appeal is best framed as challenging the admission of evidence at trial.” Id.


[15]   Questions concerning the admissibility of evidence are reserved to the sound

       discretion of the trial court and are subject to review only for an abuse of that

       discretion. Id. at 259-60. It is an abuse of discretion if the trial court’s decision

       “is clearly against the logic and effect of the facts and circumstances and the

       error affects a party’s substantial rights.” Id. at 260. On review, our court will

       not reweigh the evidence or assess the credibility of witnesses, and we will

       consider only the evidence in a light most favorable to the trial court’s




       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 6 of 11
       evidentiary ruling. Nowling v. State, 955 N.E.2d 854, 857 (Ind. Ct. App. 2011),

       clarified on reh’g on other grounds; trans. denied.


                                              II. Search and Seizure

[16]   Shelton asserts that the search of his property violated the Fourth Amendment

       to the United States Constitution, which protects “[t]he right of the people to be

       secure in their persons, houses, papers, and effects” against unreasonable

       searches and seizures by the government.2 See Berry v. State, 704 N.E.2d 462,

       464-65 (Ind. 1998) (“[T]his protection has been extended to the states through

       the Fourteenth Amendment.”). In general, searches may only “be conducted

       pursuant to a warrant supported by probable cause.” State v. Schlechty, 926

       N.E.2d 1, 3 (Ind. 2010), reh’g denied. Absent a well-delineated exception,

       evidence that is seized in violation of the warrant requirement is subject to

       exclusion from the defendant’s prosecution. Clark, 994 N.E.2d at 260.


[17]   It is undisputed that Officer Flanagan did not obtain a warrant prior to

       searching Shelton’s residence. Nevertheless, it is well-established that certain

       “special needs” beyond the normal need for law enforcement “may justify

       departures from the usual warrant and probable cause requirements.” Kopkey v.

       State, 743 N.E.2d 331, 337 (Ind. Ct. App. 2001), trans. denied. Such “special




       2
          Article 1, Section 11 of the Indiana Constitution contains a nearly identical guarantee, but a state
       constitutional claim requires a separate and independent analysis from a Fourth Amendment claim. See State
       v. Schlechty, 926 N.E.2d 1, 3 (Ind. 2010), reh’g denied. Although Shelton briefly references the State’s
       constitutional provision, he relies entirely on cases concerning federal Fourth Amendment jurisprudence.
       Accordingly, we address this case on Fourth Amendment grounds and express no opinion on whether the
       result would be the same under the Indiana Constitution. See id.

       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015                  Page 7 of 11
       needs” have frequently been found in situations relating to the supervision and

       rehabilitation of criminal offenders who are on probation. See Purdy v. State,

       708 N.E.2d 20, 22 (Ind. Ct. App. 1999). In these cases, a warrantless search

       may be justified because “probationers do not enjoy ‘the absolute liberty to

       which every citizen is entitled.’” United States v. Knights, 534 U.S. 112, 119

       (2001) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).


[18]   In the present case, Shelton was not on probation at the time of the search.

       Rather, he was executing his sentence through his direct placement in

       Community Corrections’ day reporting program, which consisted of

       electronically-monitored home detention. See I.C. §§ 35-38-2.6-2; -5. As our

       court has previously found,

               [i]n-home detention, like probation or incarceration, is a form of
               criminal punishment. Like probation, in-home detention is one point
               “on a continuum of possible punishments ranging from solitary
               confinement in a maximum-security facility to a few hours of
               mandatory community service.” In-home detention is likewise a
               conditional liberty dependent on the observance of special restrictions
               that are meant to assure that the detention serves as a period of
               genuine rehabilitation and that the community is not harmed by the
               detainee’s having frequent contact with the public. These same goals
               require and justify the exercise of supervision to assure that the
               restrictions are in fact observed.
       Kopkey, 743 N.E.2d at 337 (internal citations omitted) (quoting Griffin v.

       Wisconsin, 483 U.S. 868, 874 (1987)). Accordingly, because the search of an

       offender on home detention invokes the same “special needs” as that of a

       probationer, “a lesser degree” than probable cause will satisfy the Fourth

       Amendment. Knights, 534 U.S. at 121.

       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015     Page 8 of 11
[19]   The United States Supreme Court has established that “[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. Thus, as succinctly stated by our own supreme

       court, the questions before our court “are whether the officers had reasonable

       suspicion to believe that [Shelton] was engaged in criminal activity and whether

       there was a search condition included in his terms of [Community Corrections

       placement].” Schlechty, 926 N.E.2d at 6. Shelton concedes that he consented to

       have his house, property, and person searched as a condition to serving his

       sentence through Community Corrections. However, he posits that “the State

       failed to show that the search was reasonable.” (Appellant’s Br. p. 8).


[20]   We first note that there is a distinction “between the ‘reasonableness’ of a

       search under the Fourth Amendment and whether there was ‘reasonable

       suspicion’ to support a particular search.” Kopkey, 743 N.E.2d at 336.

       Notwithstanding the specific terms of a conditional release, all government

       searches must be reasonable. Schlechty, 926 N.E.2d at 6. As such, the Fourth

       Amendment would not support “the indiscriminate ransacking of a

       probationer’s home at all hours, or the pumping of his or her stomach, simply

       because a probation term included a search condition.” Id. at 6-7. Here, we

       find nothing unreasonable in the search of Shelton’s property. By escorting K-9

       Dixie through the house and garage to sniff for the presence of illicit drugs,

       Officer Flanagan’s search was completed in a timely manner and was not


       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 9 of 11
       overly intrusive. Thus, the issue before our court is whether there was

       reasonable suspicion to believe that Shelton had engaged in criminal activity.


[21]   “Reasonable suspicion is a less demanding standard than probable cause and

       requires a showing considerably less than 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.” Id. at

       7 (quoting Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000)). While a trial

       court’s admissibility determination is reviewed for an abuse of discretion, “the

       ultimate determination of reasonable suspicion is reviewed de novo.” Nowling,

       955 N.E.2d at 860. In deciding whether the officer had reasonable suspicion,

       we consider the totality of the circumstances to determine whether the officer

       had “a particularized and objective basis for suspecting legal wrongdoing.”

       Segar v. State, 937 N.E.2d 917, 921 (Ind. Ct. App. 2010). Reasonable suspicion

       “is dependent upon both the content of the information possessed by police and

       its degree of reliability.” Alabama v. White, 496 U.S. 325, 330 (1990).


[22]   In this case, Officer Flanagan’s investigation was initiated by an anonymous tip

       via Crime Stoppers. As a general rule, an anonymous tip, by itself, is

       insufficient to create reasonable suspicion. Lampkins v. State, 682 N.E.2d 1268,

       1271 (Ind. 1997), clarified on reh’g on other grounds. However, reasonable

       suspicion may be established if “significant aspects of the tip are corroborated

       by the police.” Id. “Such corroboration requires that an anonymous tip give

       the police something more than details regarding facts easily obtainable by the

       general public to verify its credibility.” Sellmer v. State, 842 N.E.2d 358, 361

       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 10 of 11
       (Ind. 2006). Furthermore, in order to be considered reliable, the anonymous tip

       “must also demonstrate an intimate familiarity with the suspect’s affairs and be

       able to predict future behavior.” Id.


[23]   The informant reported that Shelton had been bragging about stealing

       marijuana out of a police vehicle. Despite the anonymity, we find that the

       informant’s reliability is bolstered by the fact that he or she provided accurate

       information that had not been publicly disclosed. In fact, very few police

       officers were even aware of the theft incident. Moreover, the informant

       identified Shelton by name and further specified that he was on house arrest

       through DuComb Community Corrections. These specific details—which were

       independently corroborated by Officer Flanagan—indicate a personal

       familiarity with Shelton and his activities. Accordingly, we find that the

       anonymous tip exhibited sufficient indicia of reliability to create reasonable

       suspicion for the search in accordance with the Fourth Amendment.


                                                CONCLUSION

[24]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in admitting the evidence seized from Shelton’s property because

       Officer Flanagan’s search was justified by the combination of a reasonable

       suspicion that Shelton engaged in criminal activity and a search condition

       contained in his agreement with Community Corrections.


[25]   Affirmed.


[26]   Vaidik, C.J. and Baker, J. concur

       Court of Appeals of Indiana | Opinion | 71A03-1408-CR-309 | February 27, 2015   Page 11 of 11
