James Short v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2018
• Docket: 18A-CR-1372
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 14 2018, 6:45 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Karen Celestino-Horseman Curtis T. Hill, Jr. Austin & Jones, P.C. Attorney General of Indiana Indianapolis, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Short, November 14, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1372 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clark Rogers, Appellee-Plaintiff. Judge Trial Court Cause No. 49G25-1610-F6-39353

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 1 of 6 Case Summary [1] In October of 2016, while James Short was serving probation in another

county, Marion County probation officers and sheriff’s deputies conducted a

warrantless search of his Marion County residence and discovered

methamphetamine. As a condition of probation, Short had consented to submit

to a search of his residence by any probation or law enforcement officer.

Marion County subsequently charged Short with Level 6 felony possession of

methamphetamine. The trial court admitted the methamphetamine into

evidence at Short’s bench trial, over his objection, and found him guilty as

charged. Short contends that the trial court abused its discretion by admitting

the methamphetamine because the Marion County probation officers and

sheriff’s deputies did not have authority to conduct a warrantless search of his

residence because he was not validly serving Marion County probation.

Because Short agreed to submit to a search of his residence by “any” probation

or law enforcement officers we disagree and affirm.

Facts and Procedural History [2] On January 27, 2006, Short was sentenced to three years in community

corrections and five years of probation under Putnam County cause number

67D01-0410-FC-218 (“Putnam County Cause”), which was later modified to

two years in community corrections and six years of probation. On June 21,

2012, Short was arrested and charged with criminal deviate conduct under

Marion County cause number 49G03-1206-FB-42279 (“Marion County

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 2 of 6 Cause”). Putnam County subsequently filed multiple petitions to revoke Short’s

probation in the Putnam County Cause. On April 16, 2013, Short pled guilty in

the Marion County Cause and was sentenced to seven years of incarceration

with four years suspended to probation, three of those years on supervised sex

offender probation, to be served consecutively to the Putnam County Cause.

Short was then transported to the Indiana Department of Correction (“DOC”)

to serve the executed portion of his Marion County sentence.

[3] On December 24, 2015, Short was released from the DOC and transported to

Putnam County to resolve pending probation violations. On March 4, 2016,

Short posted bail in Putnam County and reported to the Marion County

Probation Department to inform his probation officer that he would begin

serving his probation in the Marion County Cause following completion of his

probation in the Putnam County Cause. However, the Marion County

probation officer placed Short on supervised sex offender probation that day.

Putnam County probation officer Kim Thibodeau resumed monitoring Short

after he posted bail, and on July 26, 2016, she contacted Marion County

probation to ensure that Short was complying with the conditions of probation

imposed in the Putnam County Cause while residing in Marion County.

[4] On October 5, 2016, Marion County probation officers and sheriff’s deputies

conducted a home visit at Short’s Marion County residence and discovered

methamphetamine. Short was charged with Level 6 felony possession of

methamphetamine under Marion County cause number 49G14-1610-F6-39353

(“Cause No. F6-39353”).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 3 of 6 [5] Prior to trial in Cause No. F6-39353, Short sought to suppress the

methamphetamine, arguing that he was only validly serving probation in

Putnam County at the time of the search, which made the search by the Marion

County probation officers improper. The trial court denied Short’s motion and

held a bench trial on May 2, 2018, during which it admitted the

methamphetamine as evidence. The trial court found Short guilty as charged

and sentenced him to 544 days of incarceration.

Discussion and Decision [6] Short contends that the trial court abused its discretion by admitting the

methamphetamine discovered during the warrantless search of his residence.

We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App. 2014). “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.”

Id.

[7] Generally, the Fourth Amendment of the United States Constitution and

Article 1, Section 11 of the Indiana Constitution require searches to be

conducted pursuant to a warrant supported by probable cause. Hodges v. State,

54 N.E.3d 1055, 1058 (Ind. Ct. App. 2016). There are, however, various

exceptions to the warrant requirement, id. at 1059, which the State bears the

burden of proving existed at the time of the search. Sugg v. State, 991 N.E.2d

601, 607 (Ind. Ct. App. 2013), trans. denied. One such exception is a valid

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 4 of 6 waiver in the terms and conditions of probation. See State v. Vanderkolk, 32

N.E.3d 775, 775 (Ind. 2015) (establishing that a probationer may in advance, by

a valid consent or search term in the conditions of release, authorize a

warrantless search of his residence without reasonable suspicion). The

probationer must be “unambiguously informed of a clearly expressed search

condition in the conditions of their release to probation.” Hodges 54 N.E.3d at

1060 (internal quotations admitted).

[8] Neither Short nor the State contests that Short was on probation in Putnam

County at the time his residence was searched.1 On February 26, 2008, by

signing and dating the Putnam County trial court’s order of probation, Short

acknowledged that he read and understood the conditions listed therein. One of

these conditions provided that Short would “submit to search of person,

property or residence upon request by any probation, PCADP or law

enforcement officer.” Def. Ex. E (emphasis added). The language of the

condition is clear that Short authorized a search of himself and his residence by

any probation or law enforcement officer while on Putnam County probation.

Short specifically contends that because he was not validly serving his Marion

County probation until completion of his Putnam County probation, Marion

County probation officers and sheriff’s deputies had no authority to search his

residence. This distinction makes no difference, because Marion County

1 There does seem to be some question, however, as to whether Short was also validly serving Marion County probation on the date of the search. Because disposition of that issue is inconsequential to our decision in this matter, we will not address it.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 5 of 6 probation officers and sheriff’s deputies qualify as “any” probation or law

enforcement officers under the conditions of Putnam County probation. Short

has failed to establish that the trial court abused its discretion by admitting the

methamphetamine that was discovered during the warrantless search of his

residence.

[9] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1372 | November 14, 2018 Page 6 of 6