                                                                          Jul 10 2015, 8:16 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                         Glen E. Koch II
      Attorney General of Indiana                                Boren Oliver & Coffey, LLP
                                                                 Martinsville, Indiana
      Ian McLean
      Deputy Attorney General
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          July 10, 2015

      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 55A01-1501-CR-9
              v.                                                 Appeal from the Morgan Circuit
                                                                 Court

      Braeden Terrell,                                           The Honorable Matthew G. Hanson,
      Appellee-Defendant                                         Judge

                                                                 Case No. 55C01-1410-CM-1502




      Crone, Judge.



                                               Case Summary
[1]   Braeden Terrell was placed on probation and was ordered not to possess or

      consume alcoholic beverages and not to possess firearms as conditions of his

      probation. As another condition of his probation, he waived “any and all” of

      Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015                      Page 1 of 11
      his search and seizure rights under state and federal law and agreed to submit to

      reasonable searches of his property or residence at any time by a probation

      officer. State’s Ex. 2. During a home visit, a probation officer found alcoholic

      beverages in Terrell’s kitchen and searched his nightstand for firearms and

      found marijuana and paraphernalia.


[2]   The State charged Terrell with class B misdemeanor marijuana possession and

      class A misdemeanor paraphernalia possession. Terrell filed a motion to

      suppress the contraband, arguing that the search of the nightstand was

      unconstitutional under the Fourth Amendment of the U.S. Constitution and

      Article 1, Section 11 of the Indiana Constitution. The trial court granted the

      motion, finding that the search of the nightstand “went well beyond the scope

      of the reasonable searches up to that point.” Appellant’s App. at 15.


[3]   The State appeals, claiming that the trial court erred in granting Terrell’s

      motion to suppress. We agree. With respect to the Fourth Amendment, Terrell

      waived his search and seizure rights and agreed to submit to searches of his

      property and residence, and the search of the nightstand for firearms was not

      unreasonable. And as for Article 1, Section 11, the search was reasonable

      under the totality of the circumstances. Therefore, we reverse and remand.


                                   Facts and Procedural History
[4]   In August 2014, Terrell was convicted in Hendricks County of class A

      misdemeanor operating a vehicle while intoxicated with endangerment and



      Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015     Page 2 of 11
placed on probation. On August 12, Terrell signed an order with the following

probation conditions:

        7. You shall not leave the State of Indiana and agree to waive
        extradition to the State of Indiana and to appear before the Court
        when so ordered by the Court.

        ….

        9. You shall permit the Probation Officer and any Law Enforcement
        Officer assisting the Probation Officer to enter your residence and to
        ask reasonable questions about your activities. You shall sign a waiver
        to the search of your person or property when requested by the
        Probation Officer.

        10. You shall not consume, or possess on your person or in your
        residence, any controlled substance (illegal drug) or drug
        paraphernalia, except as prescribed to you by a licensed physician.
        You shall submit to alcohol and drug tests when requested by the
        Probation Department or any Law Enforcement Officer.…

        11. You shall not possess any firearm, destructive device, or
        dangerous weapon on your person, in your residence, or in your
        vehicle.

        ….

        You shall not consume, or possess on your person or in your
        residence, any alcoholic beverages, or enter into any establishment
        where alcoholic beverages are the primary product for sale. This
        includes all liquor stores, bars, taverns, and pubs.

        You shall be evaluated by a DMHA Certified substance abuse
        program within forty-five (45) days of today. You shall successfully
        complete and pay for any program referred by your Probation Officer.
State’s Ex. A.




Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015         Page 3 of 11
[5]   On August 27, Terrell signed a form entitled “Fourth Amendment Waiver of

      Rights as Condition of Probation,” which reads in pertinent part as follows:

               Probationer specifically waives any and all rights as to search and
               seizure under the laws and Constitution of both the United States and
               the State of Indiana during his/her period of probation. Probationer
               agrees to submit to reasonable search and seizure of his/her person,
               property, vehicle, residence, and any other property under his/her
               control, at any time, by any Probation Officer, and any Law
               Enforcement Officer accompanying the Probation Officer.

               ….

               Probationer is informed of his/her Fourth Amendment rights and
               hereby knowingly and intentionally waives those rights to the extent
               provided in this waiver as a condition of probation.
      State’s Ex. 2. 1


[6]   Also on that date, Terrell admitted to his probation officer, Cheryl Koch, that

      he had consumed alcohol four days earlier at a bachelor party in Tennessee that

      he had received court permission to attend. Koch told him that she would not

      file a probation violation notice because he had not yet received substance

      abuse treatment.




      1
        The form also provides, “Probationer waives his/her Sixth Amendment right to consult with an attorney
      prior to signing this waiver of rights to search.” State’s Ex. 2. Terrell objected to this provision at the
      suppression hearing, but the trial court did not address the issue in its order. In his appellate brief, Terrell
      asserts that the Sixth Amendment of the U.S. Constitution and Article 1, Section 13 of the Indiana
      Constitution “guarantee the right of a person to have an attorney during criminal proceedings” and that
      “[i]nsofar as [he] was ordered to attend the probation meeting and ordered to sign the waiver without
      counsel, it violated his aforementioned rights.” Appellee’s Br. at 8 n.1. Other than the constitutional clauses
      themselves, Terrell cites no authority for this assertion.

      Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015                               Page 4 of 11
[7]   In supervising Terrell’s probation, Koch monitored his Facebook posts. On

      September 28, she saw a post indicating that Terrell was at a bar in downtown

      Indianapolis. 2 Based on these alcohol-related issues, Koch decided to conduct a

      home visit “[t]o see if [Terrell] was in compliance with his rules[.]” Tr. at 23.


[8]   Around 1:00 p.m. on October 2, Koch arrived at Terrell’s home in Martinsville

      with probation officer Andrew Lillpop. Terrell allowed the officers inside.

      Terrell’s girlfriend and a housecleaner were also in the home. Koch saw an

      almost empty whiskey bottle on the kitchen counter. She opened the

      refrigerator and found a case of beer inside. She also saw bottles of alcohol and

      cups beside the refrigerator.


[9]   Lillpop administered a portable breath test, which indicated that Terrell had not

      consumed alcohol. Lillpop then asked Terrell if “there were any dangerous

      weapons in the residence[.]” Id. at 34. Terrell said that “there were some in his

      safe […] in his bedroom.” Id. at 35. Lillpop asked Terrell to show him the safe.

      According to Lillpop,

                 [Terrell] took me back into the back bedroom I open[ed] the door or he
                 open[ed] the door and he showed me where the guns were and the safe
                 was locked there was an empty one there was one on top in a pouch
                 and he had told me that that one wasn’t working so I pulled that one
                 out set it on the bed had Mr. Terrell go back into the front room so
                 that I could look since I was looking I didn’t want them standing over
                 my shoulder for safety purposes. Um and then I looked in the
                 nightstand and found marijuana and then at that time I immediately




      2
          The record does not support the State’s assertion that Terrell posted a photograph of himself inside the bar.


      Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015                                Page 5 of 11
               stopped the search left the marijuana there in the nightstand and um I
               called dispatch and Morgan County Sheriff’s department came out to
               assist.
       Id. at 36. Lillpop searched the nightstand because it was a “common[]place to

       hide a firearm[.]” Id. at 37. He also found marijuana paraphernalia in the

       nightstand.


[10]   The State charged Terrell with class A misdemeanor paraphernalia possession

       and class B misdemeanor marijuana possession. Terrell filed a motion to

       suppress “all items seized in this case because the search that preceded the

       seizure was made without any suspicion that [he] possessed controlled

       substances, and was simply an investigatory probation search, impermissible

       under [Article 1, Section 11] of Indiana’s Constitution as well as the 4th

       Amendment” of the U.S. Constitution. Appellant’s App. at 12. After a

       hearing, the trial court issued an order granting Terrell’s motion to suppress,

       finding that “the search of the dresser/nightstand revealing suspected marijuana

       went well beyond the scope of the reasonable searches up to that point.” Id. at

       15. The State now appeals.


                                       Discussion and Decision
[11]   “The State has the burden of demonstrating that the measures it used to seize

       the information or evidence were constitutional.” State v. Augustine, 851 N.E.2d

       1022, 1025 (Ind. Ct. App. 2006).

               When appealing the grant of a motion to suppress, the State appeals
               from a negative judgment and must show the trial court's ruling was
               contrary to law. This Court will reverse a negative judgment only

       Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015            Page 6 of 11
                when the evidence is without conflict and all reasonable inferences
                lead to a conclusion opposite that reached by the trial court. We
                neither reweigh the evidence nor judge the credibility of the witnesses,
                and we consider only the evidence most favorable to the judgment.
       Id. (citations omitted). “[T]he ultimate determination of the constitutionality of

       a search or seizure is a question of law that we consider de novo.” Carpenter v.

       State, 18 N.E.3d 998, 1001 (Ind. 2014).


[12]   “Both the Fourth Amendment to the United States Constitution and Article [1],

       Section 11 of the Indiana Constitution require in general that searches should

       be conducted pursuant to a warrant supported by probable cause.” Schlechty v.

       State, 926 N.E.2d 1, 3 (Ind. 2010) (footnotes omitted), cert. denied (2011). 3 “And

       both this jurisdiction and the federal courts have recognized various exceptions

       to the warrant requirement.” Id. The State contends that Lillpop’s warrantless

       search of Terrell’s nightstand did not violate either constitution. We address

       each in turn.


             Section 1 – The search of the nightstand did not violate
                the Fourth Amendment of the U.S. Constitution.
[13]   “The fundamental purpose of the Fourth Amendment is to protect the

       legitimate expectations of privacy that citizens possess in their persons, their




       3
         See U.S. CONST. amend. IV (“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.”); IND. CONST. art. 1, § 11 (“The right of the people to be secure in
       their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and
       no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing
       the place to be searched, and the person or thing to be seized.”).

       Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015                            Page 7 of 11
       homes, and their belongings.” Montgomery v. State, 904 N.E.2d 374, 377-78

       (Ind. Ct. App. 2009), trans. denied. In Vanderkolk v. State, No. 79S04-1411-CR-

       718, 2015 WL 3608834 (Ind. June 9, 2015), a Fourth Amendment case that was

       decided after this appeal was fully briefed, the Indiana Supreme Court held that

       probationers “who have consented or been clearly informed that the conditions

       of their probation … unambiguously authorize warrantless and suspicionless

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

       probationary … status.” Id., slip op. at *4. Here, Terrell waived “any and all

       rights as to search and seizure” under state and federal law and agreed to

       submit to “reasonable search and seizure” of his property or residence at any

       time by any probation officer. State’s Ex. 2. In his motion to suppress, Terrell

       argued that the search of the nightstand was unconstitutional because it was not

       based on suspicion that he possessed controlled substances. But under

       Vanderkolk, this is no longer a valid objection to the search. The question before

       us is simply whether the search was “reasonable.” See id. (waiver form);

       Schlechty, 926 N.E.2d at 6 (“[A]ll government searches, whether or not

       conducted pursuant to voluntary consent, must be ‘reasonable.’”).


[14]   Depending on the terms of a probationer’s consent, in many cases only the

       method of execution, and not the scope, of the search would be subject to a

       reasonableness challenge. Cf. Schlechty, 926 N.E.2d at 6-7 (“For example the

       Fourth Amendment would not condone 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.”). The voluntariness of


       Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015    Page 8 of 11
       the consent could be considered questionable in light of a probationer’s

       negligible bargaining power and the Hobson’s choice of either signing the

       consent form or going to prison. 4 But unless and until our supreme court limits

       Vanderkolk or further defines its parameters, we must conclude that where, as

       here, a probationer has waived any and all of his search and seizure rights and

       agreed to submit to searches of his property and residence at any time by a

       probation officer, a nondestructive daytime search of the probationer’s

       nightstand for firearms is not unreasonable under the Fourth Amendment.


             Section 2 – The search of the nightstand did not violate
                Article 1, Section 11 of the Indiana Constitution.
[15]   The purpose of Article 1, Section 11 of the Indiana Constitution “is to protect

       from unreasonable police activity those areas of life that Hoosiers regard as

       private.” State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006). “The provision

       must receive a liberal construction in its application to guarantee the people

       against unreasonable search and seizure.” Id. at 340. Under the Indiana

       Constitution, the legality of a search depends on whether government conduct




       4
         A Hobson’s choice is “an apparently free choice that is really no choice at all.” Gray v. State, 841 N.E.2d
       1210, 1218 (Ind. Ct. App. 2006), trans. denied. In the civil context, a “‘standardized contract … imposed and
       drafted by the party of superior bargaining strength [that] relegates to the subscribing party only the
       opportunity to adhere to the contract or reject it’” is called an adhesion contract. Sanford v. Castleton Health
       Care Ctr., LLC, 813 N.E.2d 411, 417 (Ind. Ct. App. 2004) (quoting Pigman v. Ameritech Pub., Inc., 641 N.E.2d
       1026, 1035 (Ind. Ct. App. 1994)), trans. dismissed (2006). An adhesion contract is unconscionable and
       therefore unenforceable if it is “such as no sensible man not under delusion, duress or in distress would make,
       and such as no honest and fair man would accept.” Id. (citation, quotation marks, and alteration omitted).
       One could argue that consent-to-search forms signed by probationers bear many similarities to
       unconscionable adhesion contracts, but that concept thus far has no parallel in criminal law.

       Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015                              Page 9 of 11
       was reasonable under the totality of the circumstances. Tuggle v. State, 9 N.E.3d

       726, 735 (Ind. Ct. App. 2014), trans. denied.


[16]   In prior cases, the Indiana Supreme Court has stated that the reasonableness of

       a search “turns on a balance of: 1) the degree of concern, suspicion, or

       knowledge that a violation has occurred; 2) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities; and 3) the

       extent of law enforcement needs.” Id. (citing Litchfield v. State, 824 N.E.2d 356,

       359 (Ind. 2005)). “[T]here may well be other relevant considerations under the

       circumstances.” Litchfield, 824 N.E.2d at 361. In light of Vanderkolk’s

       expansive endorsement of warrantless and suspicionless probation searches

       under the Fourth Amendment, it is questionable whether a separate Litchfield

       analysis is required here. Unless and until our supreme court specifically says

       otherwise, however, we shall continue to follow existing precedent and balance

       the three Litchfield factors and other relevant considerations in determining the

       reasonableness of probation searches under the Indiana Constitution.


[17]   Regarding the first factor, Lillpop’s suspicion that a firearm might be in the

       nightstand was purely conjectural, but Terrell had waived any and all of his

       search and seizure rights and agreed to submit to searches of his property and

       residence. As for the second factor, the degree of intrusion on Terrell’s ordinary

       activities was substantial, but he was on probation and had agreed to submit to

       the search as a condition of his probation. And finally, regarding the extent of

       law enforcement needs, even Terrell concedes that “the courts have a high

       degree of need to monitor probationers,” Appellee’s Br. at 16, and he cites no

       Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015      Page 10 of 11
       relevant authority for his assertion that Lillpop was obligated to stop searching

       for firearms after he found a probation violation. When the factors are

       balanced and Terrell’s consent to the search is taken into account, we conclude

       that the search of the nightstand was not unreasonable under the totality of the

       circumstances and therefore did not violate Article 1, Section 11 of the Indiana

       Constitution. Consequently, we reverse the trial court’s grant of Terrell’s

       motion to suppress and remand for further proceedings.


[18]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 55A01-1501-CR-9 | July 10, 2015   Page 11 of 11
