                                                                                   FILED
                                                                              Nov 30 2018, 10:21 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brian A. Karle                                            Curtis T. Hill, Jr.
      Ball Eggleston, PC                                        Attorney General
      Lafayette, Indiana                                        Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James E. Jarman,                                          November 30, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1034
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Randy J. Williams,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                79D01-1703-F4-16



      Vaidik, Chief Judge.



                                           Case Summary
[1]   James E. Jarman appeals his convictions for possession of methamphetamine,

      dealing in a synthetic drug or synthetic drug lookalike substance, and

      possession of paraphernalia. The convictions arose from a suspicionless search

      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018                            Page 1 of 8
      of Jarman, who was on community corrections for a prior conviction. The

      Indiana Supreme Court has held that suspicionless searches of a community-

      corrections participant are permissible under the Fourth Amendment to the

      U.S. Constitution, but only if the conditions of the program unambiguously

      authorize such searches. Here, Jarman signed a waiver consenting to searches

      “without a warrant and without probable cause.” Jarman contends that this

      language did not unambiguously authorize searches with no suspicion at all and

      that the suspicionless search of his person therefore violated the Fourth

      Amendment. Given the well-established distinction between “probable cause”

      and the lesser degrees of suspicion sometimes required by the Fourth

      Amendment, we agree with Jarman and reverse his convictions.



                            Facts and Procedural History
[2]   In March 2017, Jarman was under the supervision of Tippecanoe County

      Community Corrections in connection with a 2015 conviction for felony

      domestic battery of his ex-wife. On the morning of March 16, two community-

      corrections officers went to Jarman’s house after hearing from an anonymous

      source that Jarman’s ex-wife “was possibly living at the residence,” that Jarman

      had purchased alcohol and had been drinking, and that Jarman “possibly had

      been abusing his [A]dderall medication.” Tr. p. 10.


[3]   At the house, the officers had Jarman do a breathalyzer test, which he passed.

      When asked if there was anyone else in the house, Jarman said that a male

      friend of his was there, but the officers conducted a “safety sweep” of the house

      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018       Page 2 of 8
      and found Jarman’s ex-wife in the attic. Id. at 8. One of the officers handcuffed

      Jarman and “conducted a pat down on him.” Id. The officer found “a knotted

      baggie containing an unknown white powdery substance.” Id. at 12. Jarman

      said that it was “joint medication that he uses for joint pain.” Id. at 13. The

      officer asked where the bottle for the medication was, and Jarman said that it

      was in a locked cabinet in the basement. Jarman gave the officer a key to the

      cabinet, and the officer proceeded to find methamphetamine, several bags of a

      green, leafy substance (that was not marijuana), a synthetic urine kit, two

      handwritten ledgers, stamp baggies, a cut straw, a scale, and a glass smoking

      device. Id. at 14-16.


[4]   The State charged Jarman with dealing and possession of methamphetamine,

      dealing and possession of a synthetic drug or synthetic drug lookalike

      substance, and possession of paraphernalia. The case proceeded to a bench

      trial, where Jarman promptly moved to suppress all evidence obtained after the

      warrantless search of his person, arguing that the search violated the Fourth

      Amendment. The State responded that the search of Jarman was permissible

      because he “waived his [F]ourth [A]mendment rights” as a condition of

      admission to community corrections. Id. at 9. The State introduced a copy of

      the “Community Correction Policy Concerning Search and Seizures – Waiver

      of Fourth Amendment Rights” that Jarman had signed, which provided, in

      part:


              In consideration of the opportunity to participate in a
              Community Corrections program rather than serve my sentence

      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018     Page 3 of 8
              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.


      Ex. 21. The trial court took all matters under advisement and then issued an

      order denying Jarman’s motion to suppress and finding him guilty of all charges

      except dealing in methamphetamine. The court later merged the synthetic-drug

      possession count into the more serious synthetic-drug dealing count and

      imposed a total sentence of four years, with two of those years to be served with

      Tippecanoe County Community Corrections.


[5]   Jarman now appeals.



                                 Discussion and Decision
[6]   Jarman contends that the trial court should have granted his motion to suppress

      and found him not guilty on all charges. He renews his argument that the

      search of his person violated the Fourth Amendment, which 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.
      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018       Page 4 of 8
      While Jarman is the party appealing, whether a search was constitutional is a

      question of law we review de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind.

      2013). And because the search here was done without a warrant, the State

      bears the burden of convincing us it fell within an exception to the warrant

      requirement. See id.


[7]   Jarman makes two arguments in his brief: (1) that the officers who searched

      him did so without reasonable suspicion that he was engaged in illegal behavior

      and (2) that his consent to searches without probable cause did not also

      constitute consent to suspicionless searches. The State offers two responses,

      both based on Jarman’s consent to searches “without a warrant and without

      probable cause.” First, the State contends that Jarman, by giving that consent,

      “gave officers probable cause (and a warrant) to search him and his property”

      and “also necessarily gave them reasonable suspicion because that ‘is a less

      demanding standard than probable cause.’” Appellee’s Br. p. 7 (quoting State v.

      Schlechty, 926 N.E.2d 1, 7 (Ind. 2010), reh’g denied). The State cites no authority

      for the novel proposition that Jarman “gave” officers probable cause (and

      therefore the lesser-included reasonable suspicion) by signing the waiver, and

      we are not aware of any. By signing the waiver, Jarman did not agree that

      officers had probable cause to search him; rather, he agreed that officers did not

      need probable cause to search him.1




      1
       The State does not argue that the search of Jarman was justified by actual suspicion that he was engaged in
      some illegal activity, notwithstanding the fact that his ex-wife—the victim of his underlying domestic-battery

      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018                              Page 5 of 8
[8]   No matter, the State says: Jarman’s waiver of Fourth Amendment rights was

      complete, not partial, meaning that he could be searched with no suspicion at

      all. The State cites State v. Vanderkolk, where our Supreme Court held that

      suspicionless searches of a community-corrections participant are permissible if

      the participant has “consented or been clearly informed that the conditions of

      their probation or community corrections program unambiguously authorize”

      such searches. 32 N.E.3d 775, 779 (Ind. 2015). 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 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.”

      (Emphasis added.) 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”




      offense—had been found hiding in the attic. The State argues only that Jarman “gave” officers reasonable
      suspicion by signing the waiver.

      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018                           Page 6 of 8
      also “unambiguously authorizes” suspicionless searches. We hold that it does

      not.


[9]   As already noted, the State itself acknowledges that “reasonable suspicion” is

      “a less demanding standard than probable cause.” Appellee’s Br. p. 7. And

      while not all searches need to be supported by probable cause, some degree of

      suspicion is often required. As the U.S. Supreme Court explained in United

      States v. Knights, a case involving a search of the apartment of a person on

      probation:


              The degree of individualized suspicion required of a search is a
              determination of when there is a sufficiently high probability that
              criminal conduct is occurring to make the intrusion on the
              individual’s privacy interest reasonable. Although the Fourth
              Amendment ordinarily requires the degree of probability
              embodied in the term “probable cause,” a lesser degree satisfies
              the Constitution when the balance of governmental and private
              interests makes such a standard reasonable.


      534 U.S. 112, 121 (2001). Given this well-established distinction between

      “probable cause” and lesser degrees of suspicion, the statement “I agree to a

      search without probable cause” does not unambiguously mean “I agree to a

      search without reasonable suspicion.” If 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.” See, e.g., Samson v. California, 547 U.S. 843 (2006) (holding that

      suspicionless search did not violate Fourth Amendment because it was

      Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018         Page 7 of 8
       conducted pursuant to parole statute allowing searches “with or without a

       search warrant and with or without cause” (emphasis added)). Because the

       waiver did not include any such language, we reverse.2


[10]   Reversed.


       Riley, J., and Kirsch, J., concur.




       2
         In a single sentence in the last paragraph of its brief, the State cites the U.S. Supreme Court’s holding that
       when police lawfully arrest a suspect, “a full search of the person is not only an exception to the warrant
       requirement of the Fourth Amendment, but it is also a reasonable search under that Amendment.” United
       States v. Robinson, 414 U.S. 218, 235 (1973) (formatting altered). To the extent the State meant to suggest that
       the search of Jarman fell within the search-incident-to-arrest exception to the warrant requirement, it waived
       the issue by failing to develop a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (argument section of
       appellant’s brief “must contain the contentions of the appellant on the issues presented, supported by cogent
       reasoning”). In the sentence following the citation to Robinson, the State returns to its argument that Jarman
       “waived” the protection of the Fourth Amendment in order “to participate in community corrections.”
       Appellee’s Br. p. 8.

       Court of Appeals of Indiana | Opinion 18A-CR-1034 | November 30, 2018                               Page 8 of 8
