MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 20 2019, 6:24 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Brooklyn, Indiana                                       Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert D. Rivard,                                       December 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1122
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D03-1603-F2-812



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019                   Page 1 of 9
                                               Case Summary

[1]   Robert D. Rivard appeals the revocation of his probation, claiming that the

      evidence seized from his residence by police was improperly admitted at the

      revocation hearing because there was no reasonable suspicion to support a

      warrantless search.


[2]   We affirm.


                                      Facts and Procedural History

[3]   In 2016, Rivard pleaded guilty to Level 2 felony dealing in methamphetamine,

      pursuant to a plea agreement. A portion of the plea agreement provided that


              If the Defendant is sentenced to a term of probation, the
              defendant agrees to waive his . . . constitutional rights under the
              Fourth Amendment to the United States Constitution and Article
              1, § 11 of the Indiana Constitution. The defendant waives these
              constitutional rights as to his . . . person, vehicle, residence
              cellular telephone(s), computer(s) and/or other electronic storage
              or communication device(s). The defendant understands and agrees
              that [the above] may be searched at any time, without notice, without
              reasonable suspicion, without probable cause, or without a search
              warrant. . . . . The defendant further understands and agrees that
              any contraband or evidence of other criminal activity derived
              from the search of the above listed property and/or items may be
              introduced against him . . . at a probation revocation hearing
              and/or criminal prosecution.


      Appellant’s Appendix Vol. II at 78 (emphasis added).


[4]   On October 18, 2016, the trial court sentenced Rivard to nineteen years of

      incarceration with six years executed and thirteen years suspended to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019   Page 2 of 9
      probation. Thereafter, on November 6, 2017, the trial court granted Rivard’s

      petition for sentence modification, ordered the remainder of the sentence

      suspended, and permitted Rivard to be placed on probation. That same day,

      Rivard acknowledged, agreed to, and signed written conditions of probation

      that included the following:


              You agree to waive your constitutional rights under the Fourth
              Amendment of the United States Constitution and Article 1,
              Section 11 of the Indiana Constitution. You waive these
              constitutional rights as to your person, vehicle or residence. You
              agree that you, any vehicle you are operating or your residence may be
              searched at any time without notice, probable cause, or a search warrant.
              This search may be conducted by any Vigo County Adult
              Probation Officer or any law enforcement officer acting with
              reasonable suspicion that you may be in violation of any of the conditions
              of your probation or direct placement. . . .


      Id. at 123 (emphases added).


[5]   In August 2018, the Vigo County Drug Task Force began conducting an

      investigation regarding marijuana distribution in the Terre Haute area. At

      some point prior to August 29, Terre Haute police received information that

      Rivard was dealing marijuana from his Terre Haute residence. This

      information was provided to Terre Haute Police Department Detective Brian

      Bourbeau from Vivian Frazier after police officers had seized a quantity of

      marijuana from Frazier’s residence. At some point, Frazier showed Detective

      Bourbeau several text messages that she had received from Rivard, indicating




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019   Page 3 of 9
      that she and Rivard were negotiating a drug deal. Frazier had provided

      information to Terre Haute detectives in the past that proved to be reliable.


[6]   Detective Bourbeau contacted Rivard’s probation officer and confirmed that a

      “Fourth Amendment Waiver” was included in Rivard’s conditions of

      probation. Transcript at 7. On August 29, 2018, Detective Bourbeau and other

      police officers proceeded to Rivard’s residence, knocked on the door, and

      received no response. After a neighbor informed Detective Bourbeau that

      Rivard drove a white Lexus and frequently made many trips to and from his

      residence on a daily basis, Detective Rivard and some other officers maintained

      surveillance in the vicinity.


[7]   Later that same day, Detective Bourbeau observed a white Lexus approach the

      area. One of the police officers stopped the vehicle for speeding and the driver

      was identified as Rivard. Rivard was then transported to his home and

      Detective Bourbeau informed him that they were going to search the residence.

      At that point, Rivard volunteered that there was marijuana inside. During the

      search, the officers seized a total of 203.7 grams of marijuana, a handgun, and

      various drug paraphernalia.


[8]   Rivard was arrested and charged with several criminal offenses that related to

      the items that were seized in the search. The State also filed a petition to revoke

      Rivard’s probation on September 4, 2018. At the revocation hearing, Rivard

      objected to the admission of the evidence that was seized from his residence,

      claiming that the State lacked reasonable suspicion to search his home in


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019   Page 4 of 9
       accordance with the conditions of probation. The State responded that

       reasonable suspicion was not required in light of the waiver provision in the

       plea agreement. The trial court overruled Rivard’s objection, admitted the

       evidence, and determined that the State proved by a preponderance of the

       evidence that Rivard had violated the conditions of his probation. 1 Thereafter,

       Rivard was sentenced to an executed term of eight years of the previously

       suspended sentence. Rivard now appeals.


                                              Discussion and Decision

[9]    When reviewing a probation revocation order, we consider the evidence most

       favorable to the trial court’s judgment without reweighing the evidence or

       judging the credibility of the witnesses. Cox v. State, 706 N.E.2d 547, 551 (Ind.

       1999). The trial court has broad discretion to admit evidence, and reversal can

       only be predicated on a finding of an abuse of that discretion and resulting

       prejudice. Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).


[10]   The rules of evidence do not strictly apply in probation matters and trial courts

       are “allow[ed] even more flexibility in the admission of evidence[.]” Indiana

       Evid. Rule 101(d)(2); Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011).

       Additionally, our Supreme Court has held that trial courts may consider any

       relevant evidence bearing some substantial indicia of reliability in probation




       1
        The trial court did not address the issue regarding the legality of the search, and there was no specification
       as to which condition of probation that Rivard violated.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019                    Page 5 of 9
       revocation hearings. Cox, 706 N.E.2d at 551. The considerable flexibility trial

       judges enjoy in admitting evidence at probation revocation proceedings stems

       from the recognition that “probationers are not entitled to the full array of

       constitutional rights afforded defendants at trial.” Id. at 549.


[11]   Among the protections lost by probationers, is the full applicability of the

       exclusionary rule. Dulin v. State, 346 N.E.2d 746, 752-53 (Ind. Ct. App. 1976).

       Searches of probationers and community corrections participants who have

       either consented or been clearly informed that the conditions of the probation

       or community corrections program unambiguously authorized warrantless and

       suspicionless searches do not violate the Fourth Amendment. State v.

       Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015). On the other hand, a waiver that

       permits searches without a warrant and without probable cause does not

       unambiguously authorize a search without a “reasonable suspicion” that the

       defendant has violated the conditions of probation. See Jarman v. State, 114

       N.E.3d 911, 915 (Ind. Ct. App. 2018), trans. denied. Additionally, evidence that

       is seized illegally will be excluded from a revocation hearing only if it was

       seized as a part of a continuing plan of police harassment or in a particularly

       offensive manner. Henderson v. State, 544 N.E.2d 507, 512-13 (Ind. 1989).


[12]   In this case, there is no evidence of law enforcement harassment or that the

       police were even investigating Rivard before Frazier told Detective Bourbeau

       that Rivard was dealing in marijuana. Rivard’s name surfaced only with regard

       to a separate, ongoing, drug investigation in Terre Haute. And after the police

       had become aware of Rivard’s suspected criminal conduct, they lawfully

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019   Page 6 of 9
       stopped his vehicle for speeding. Rivard has not established that the police

       engaged in any inappropriately offensive behavior to obtain the items that were

       seized during the search of his residence.


[13]   Moreover, Rivard has not shown any violation of the exclusionary rule. The

       plea agreement contains no qualifying language regarding the level of suspicion

       required, if any, that must be satisfied before a search could be conducted. On

       the other hand, the waiver language set forth in the conditions of probation

       required “reasonable suspicion” of a probation violation before a lawful search

       could be conducted. Notwithstanding the apparent conflict in the two waiver

       provisions, we need not decide what language controls, as the State established

       that there was a reasonable suspicion that marijuana would be found at

       Rivard’s residence.


[14]   More particularly, we note that reasonable suspicion exists when facts known to

       a police officer, together with reasonable inferences from those facts, would

       cause an ordinarily prudent person to believe that a crime has occurred or is

       about to occur. Perez v. State, 981 N.E.2d 1242, 1249 (Ind. Ct. App. 2013),

       trans. denied.    Reasonable suspicion does not require law enforcement officers

       to have the level of suspicion necessary for probable cause, but they must have

       more than an unparticularized suspicion or hunch. Castner v. State, 840 N.E.2d

       362, 366 (Ind. Ct. App. 2006). The totality of the circumstances of each case is

       examined to determine whether there is a particularized and objective basis for

       suspecting legal wrongdoing. Bush v. State, 925 N.E.2d 787, 791 (Ind. Ct. App.

       2010).     In short, a police officer must “be able to articulate some facts that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019   Page 7 of 9
       provide a particularized and objective basis” for believing a crime has occurred

       or is afoot. Marshall v. State, 117 N.E.3d 1254, 1259 (Ind. 2019). Information

       received by police face-to-face with a person who is making statements against

       his or her penal interest enhances the credibility and reliability of that person’s

       information. Robinson v. State, 888 N.E.2d 1267, 1270-71 (Ind. Ct. App. 2008),

       trans. denied.


[15]   In this case, Rivard volunteered to police officers that marijuana was in his

       residence. This “open admission” came immediately after the lawful traffic

       stop when Detective Bourbeau told Rivard that his house was going to be

       searched. Transcript at 8, 27-28. Rivard’s volunteered statement to police

       officers that marijuana was in his house supplied the requisite reasonable

       suspicion to justify a search. See Carter v. State, 634 N.E.2d 830, 833 (Ind. Ct.

       App 1994) (recognizing that a defendant’s volunteered statements not made in

       response to police interrogation are not barred by the Fifth Amendment to the

       United States Constitution). Moreover, Rivard’s admission was consistent with

       the information that Frazier conveyed to police. Frazier, who was not “on

       contract as an informant,” told Detective Bourbeau that she had purchased

       marijuana from Rivard, which was a statement against her penal interest.

       Transcript at 22. See Robinson, 888 N.E.2d at 1270-71. Frazier corroborated

       those statements when she showed Detective Bourbeau her text message

       exchange with Rivard regarding an imminent drug transaction.


[16]   Given Rivard’s admission that there was contraband in his house and Frazier’s

       corroborated tip, it is readily apparent that the standard of reasonable suspicion

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019   Page 8 of 9
       was established that justified the search of his residence. Thus, Rivard has

       failed to show that his Fourth Amendment rights were violated when the police

       officers searched his residence. 2 For the foregoing reasons, we conclude that

       the trial court did not err in revoking Rivard’s probation.


[17]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       2
         Although Rivard cites to some authority and makes a general assertion that the search also violated Article
       1, Section 11 of the Indiana Constitution, he advances no separate analysis under the state constitution.
       Thus, the claim is waived. Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001); Jackson v. State, 996 N.E.2d 378,
       383 n.3 (Ind. Ct. App. 2013), trans. denied. Waiver notwithstanding, we note that Article 1, Section 11 of the
       Indiana Constitution turns on the reasonableness of police conduct rather than a defendant’s expectation of
       privacy. See Carpenter v. State, 18 N.E.3d 998, 1001-02 (Ind. 2014) (holding that “reasonableness” focuses on
       the totality of the circumstances considering the degree of knowledge that a violation has occurred, along
       with the extent of intrusion that the method of the search imposes on the citizen’s usual activities, and the
       extent of law enforcement needs). Here, only reasonable suspicion—at most—was required to search
       Rivard’s residence pursuant to the conditions of probation, there was little or no intrusion upon Rivard’s
       ordinary activities when police searched his residence, inasmuch as he was permitted to walk around the
       house and smoke a cigarette, and the need to determine whether Rivard was continuing to sell drugs in
       violation of the conditions of his probation was high in light of the fact that he had been placed on probation
       for drug dealing.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1122 | December 20, 2019                   Page 9 of 9
