FILED Oct 30 2019, 8:11 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR ATTORNEY FOR APPELLANT/CROSS APPELLEE APPELLEE/CROSS APPELLANT Curtis T. Hill, Jr. Stephen Gerald Gray Attorney General of Indiana Indianapolis, Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
State of Indiana, October 30, 2019 Appellant/Cross Appellee-Plaintiff, Court of Appeals Case No. 18A-CR-2811 v. Appeal from the Marion Superior Court Tyree L. Harper, The Honorable Shatrese Flowers, Appellee/Cross Appellant-Defendant. Judge Trial Court Cause No. 49G20-1606-F2-25117
Pyle, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 1 of 16 Statement of the Case
[1] The State of Indiana appeals the trial court’s grant of Tyree Harper’s (“Harper”)
motion to suppress. On cross-appeal, Harper asserts that the trial court erred by
denying his motion to discharge pursuant to Indiana Criminal Rule 4(C).
Concluding that the trial court erred by granting Harper’s motion to suppress,
we reverse and remand for further proceedings. In addition, we affirm the trial
court’s denial of Harper’s motion to discharge.
[2] We affirm in part, reverse in part, and remand for further proceedings.
Issues
1. Whether the trial court erred by granting Harper’s motion to suppress.
2. Whether the trial court erred by denying Harper’s motion to discharge under Criminal Rule 4(C).
Facts
[3] In September 2015, Harper was placed on parole following a conviction for
possession of a firearm by a serious violent felon, and he signed a Conditional
Parole Release Agreement (“parole agreement”). Under paragraph 9, titled,
“HOME VISITATION AND SEARCH,” the parole agreement provided that:
I understand that I am legally in the custody of the Department of Correction and that my person and residence or property under my control may be subjected to reasonable search by my supervising officer, or authorized official of the Department of Correction if the officer or official has reasonable cause to believe
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 2 of 16 the parolee is violating or is in imminent danger of violating a condition to remaining on parole.
(State’s Ex. 4). The parole agreement also provided that the use, possession, or
trafficking illegally of a controlled substance and out-of-state travel without
permission were parole violations.
[4] On June 16, 2016, Harper’s parole officer, Josh Jellison (“Parole Officer
Jellison”), received information from an anonymous source that Harper was
traveling to New York and dealing narcotics in Indianapolis. The complaining
party also stated that Harper had rented a storage unit on Mitthoeffer Road.
Four days later, Parole Officer Jellison called Harper in for a parole meeting
and administered a drug test wherein Harper tested positive for cocaine.
During this meeting, Harper also admitted to traveling to New York without
permission. Harper’s positive drug test and admission to traveling out of the
state were both violations of parole. Harper was arrested for the violations and
taken into custody at the parole office.
[5] Parole Officer Jellison and Harper then went to Harper’s home, and Parole
Officer Jellison conducted a warrantless search. During the search, Parole
Officer Jellison located a receipt, which was in Harper’s name, for a storage
unit at 2425 North Mitthoeffer Road. Parole Officer Jellison went to the
storage unit with Harper and unlocked the unit with one of Harper’s keys.
Inside the storage unit, in plain view, Parole Officer Jellison observed a black
handgun and a large, clear Ziploc bag containing a block of white substance.
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 3 of 16 Parole Officer Jellison immediately stopped this initial search of the storage unit
and advised an IMPD officer present of what he had observed.
[6] After obtaining a search warrant, the police seized the gun and white powder
block during their subsequent search of the storage unit. They also seized
another plastic bag with a white powdery substance, pills, and other materials
consistent with drug trafficking. A laboratory analysis disclosed that the storage
unit contained two batches of cocaine weighing 558.1 grams and 254.79 grams
and twelve fake .12-gram oxycodone pills containing heroin. Harper was then
transported to the custody of the Department of Correction (“DOC”).
[7] On June 29, 2016, the State charged Harper with Level 2 felony dealing in
cocaine in ten (10) or more grams, Level 3 felony possession of cocaine in
twenty-eight (28) or more grams, and Level 4 felony unlawful possession of a
firearm by a serious violent felon. According to the Chronological Case
Summary (“CCS”), an arrest warrant was issued and then recalled on June 30,
2016. The CCS further shows that an arrest warrant was again issued on June
30, 2016 and served over a year later, on August 16, 2017, when Harper was
released from the DOC.
[8] On April 10, 2018, Harper filed two motions in the trial court. First, Harper
filed a motion to suppress the evidence, arguing that the initial warrantless
search of the storage unit “exceeded the bounds of a proper ‘parole search’ and
was, in fact, an ‘investigatory search’ intended to discover evidence of new
criminal activity.” (App. 47). He argued that, as a result, the evidence seized
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 4 of 16 pursuant to the search warrant during the subsequent search should be
suppressed as fruit of the poisonous tree. Next, Harper filed a motion for
discharge under Criminal Rule 4(C). Harper argued that he had “not been
brought to trial within one (1) year of his arrest or the date that charges were
filed.” (App. 51).
[9] The trial court held a hearing on both motions on May 22, 2018. The trial
court granted Harper’s motion to suppress and denied his motion for discharge.
In regards to the motion to suppress, the trial court found that the search of
Harper’s person and residence were lawfully conducted by Parole Officer
Jellison but that the initial search of Harper’s storage unit required a search
warrant and violated the Fourth Amendment to the U.S. Constitution and
Article 1, Section 11 of the Indiana Constitution. The State now appeals.
Decision
[10] The State argues that the trial court erred when it granted Harper’s motion to
suppress. Harper, as the cross-appellant, asserts that the trial court erred by
denying his motion to discharge pursuant to Indiana Criminal Rule 4(C). We
will address each issue in turn.
1. Motion to Suppress
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 5 of 16 [11] The State appeals following the trial court’s grant of Harper’s motion to
suppress, which effectively terminated the prosecution of this case.1 Because
the State appeals from a negative judgment, it bears the burden to show that the
trial court’s ruling was contrary to law. State v. Brown, 70 N.E.3d 331, 335 (Ind.
2017). When reviewing a trial court’s suppression ruling, we determine
whether the record contains substantial evidence of probative value that
supports the trial court’s decision. Id. “We evaluate the trial court’s findings of
fact deferentially, neither reweighing the evidence nor reassessing the credibility
of the witness.” Id. However, we review the trial court’s conclusions of law de
novo. Id.
[12] The State argues that a warrant was not required for the initial search of the
storage unit and that the initial search was permitted pursuant to a valid search
condition in the parole agreement.
[13] Generally, searches should be conducted pursuant to a warrant supported by
probable cause. Allen v. State, 743 N.E.2d 1222, 1227 (Ind. Ct. App. 2011),
reh’g denied, trans. denied. “However, the United States Supreme Court has
determined that ‘[a] State’s operation of a probation system . . . presents ‘special
needs’ beyond normal law enforcement that may justify departures from the
1 We have authority to review an order granting a motion to suppress if the ultimate effect of the order is to preclude further prosecution. IND. CODE § 35-38-4-2(5).
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 6 of 16 usual warrant and probable-cause requirements.’” Id. (quoting Griffin v.
Wisconsin, 483 U.S. 868, 873-74 (1987)).
[14] There are two methods for analyzing parole or probation searches under the
Fourth Amendment. State v. Schlechty, 926 N.E.2d 1, 5 (Ind. 2010). The first is
the “special needs” exception outlined in Griffin; the second is a balancing test
which weighs the totality of the circumstances outlined in United States v.
Knights, 534 U.S. 112 (2001). Schlechty, 926 N.E.2d at 5.
[15] Concerning the “special needs” exception, a warrantless probation search under
Griffin “may be justified on the basis of reasonable suspicion to believe a
probation violation has occurred because, among other things, supervision of
probationers is necessary to ensure that probation restrictions are in fact
observed, and that the community is not harmed by the probationer being at
large." Id. at 6. 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 (citing Illinois v. Wardlow, 528 U.S. 119, 123-24
(2000)). Accordingly, “[t]his court has held that a probationer is entitled to
limited protection of his privacy interests.” Allen, 743 N.E.2d at 1227.
“[A]ffording probationers lesser protections is predicated on the premise that
probation officers, or police working with probation officers, are conducting
searches connected to the enforcement of conditions of probation and not for
normal law enforcement purposes.” Id. at 1227-28 (quoting Polk v. State, 739
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 7 of 16 N.E.2d 666, 669 (Ind. Ct. App. 2000)). When a search is not conducted within
the regulatory scheme of probation enforcement, a probationer’s normal
privacy rights cannot be stripped from him. Id. at 1228. The State must
demonstrate that a warrantless search of a probationer was a true probationary
search and not an investigatory search. Micheau v. State, 893 N.E.2d 1053, 1059
(Ind. Ct. App. 2008), trans. denied. A probation search cannot be a mere
subterfuge enabling the police to avoid obtaining a search warrant. Id. We
apply this same analysis to parolees. See State v. Vanderkolk, 32 N.E.3d 775, 779
(Ind. 2015) (“[T]he similarities between parole and probation (or community
corrections) are far greater than the differences.”); Allen, 743 N.E.2d at 1228 n.8
(the procedures concerning searches of probationers apply equally to parolees).
[16] Turning to the balancing test outlined in Knights, we need not examine the
motivation of parole officers to determine whether a search was a parole or
probationary search or a normal investigatory search. In Knights, the United
States Supreme Court held, “[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.” Knights,
534 U.S. at 121.
[17] In that case, Mark James Knights (“Knights”) was placed on probation in
California for a drug offense. As a condition of his probation, he agreed to
submit to a search of his personal or real property at any time, with or without a
warrant or reasonable cause. Several days after beginning probation, law
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 8 of 16 enforcement suspected Knights was involved in a fire that caused significant
damage to a “Pacific Gas & Electric (“PG & E”) transformer and adjacent
Pacific Bell telecommunications vault near the Napa County Airport . . . .” Id.
at 114. Brass padlocks were found at the scene, and this incident was the latest
in a string of thirty incidents that had focused suspicion on Knights and
Simoneau, another suspect, after the utility had filed a theft-of-services
complaint and disconnected Knights’ utility services for failure to pay his bill.
“Detective Todd Hancock of the Napa County Sheriff’s Department had
noticed that the acts of vandalism coincided with Knights’ court appearance
dates concerning theft of services.” Id. at 115. And just a week before the
arson, a sheriff’s deputy had stopped Knights and Simoneau near a PG & E gas
line and observed pipes and gasoline in Simoneau’s pickup truck. During
additional surveillance of Knights’ apartment, deputies observed Simoneau
leaving with three cylindrical items believed to be pipe bombs; he later returned
without those items. Knowing of the search conditions in Knights’ probation
order, detectives conducted a warrantless search of Knights’ apartment. “The
search revealed a detonation cord, ammunition, liquid chemicals, instruction
manuals on chemistry and electrical circuitry, bolt cutters, telephone pole-
climbing spurs, drug paraphernalia, and a brass padlock stamped ‘PG & E.’”
Id. Knights was arrested and indicted. After filing a motion to suppress the
evidence collected from the search of his apartment, the District Court granted
the motion “on the ground that the search was for ‘investigatory’ rather than
‘probationary’ purposes.” Id. at 116. The Court of Appeals for the Ninth
Circuit affirmed, and the Supreme Court granted certiorari. Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 9 of 16 [18] Reversing the Ninth Circuit Court of Appeals, the Supreme Court determined
that the “special needs” exception to the Fourth Amendment warrant
requirement is not limited to searches only like those in Griffin. Id. at 117. The
Court explained its reasoning as follows:
The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights’ status as a probationer subject to a search condition informs both sides of that balance. “Probation, like incarceration, is ‘a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.’” Probation 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.” Inherent in the very nature of probation is that probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled.’” Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.
The judge who sentenced Knights to probation determined that it was necessary to condition the probation on Knights’ acceptance of the search provision. It was reasonable to conclude that the search condition would further the two primary goals of probation-rehabilitation and protecting society from future criminal violations. The probation order clearly expressed the search condition and Knights was unambiguously informed of it. The probation condition significantly diminished Knights’ reasonable expectation of privacy.
In assessing the governmental interest side of the balance, it must be remembered that “the very assumption of the institution of probation” is that the probationer “is more likely than the ordinary citizen to violate the law.” The recidivism rate of probationers is significantly higher than the general crime rate. And probationers have even more of an incentive to conceal their Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 10 of 16 criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply, . . . .
The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The view of the Court of Appeals in this case would require the State to shut its eyes to the latter concern and concentrate only on the former. But we hold that the Fourth Amendment does not put the State to such a choice. Its interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.
We hold that the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer’s house. 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. Those interests warrant a lesser than probable-cause standard here. When 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 interest is reasonable.
The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary.
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 11 of 16 Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, see Indianapolis v. Edmond, 531 U.S. 32, 45, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), “we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.”
Id. at 118-122 (citations and footnotes omitted).
[19] Since Knights, the United States Supreme Court has also held that parolees may
have an even lesser expectation of privacy than probationers “because parole is
more akin to imprisonment than probation is to imprisonment.” Samson v.
California, 547 U.S. 843, 850 (2006). However, the Indiana Supreme Court has
chosen not to adopt a hierarchy of persons on supervised release who receive
greater privacy protections. Our Supreme Court ably noted that “the
similarities between parole and probation (or community corrections) are far
greater than the differences.” Vanderkolk, 32 N.E.2d at 779. Nevertheless,
Indiana parolees, probationers, and community corrections participants, who
have consented or been clearly informed that the conditions of their release
“unambiguously authorize warrantless and suspicionless searches, may
thereafter be subject to such searches during the period of their” supervised
release. Id.
[20] In analyzing the facts of this case, we choose to adopt the Knights approach in
resolving the search issue. Here, Harper was placed on parole following a
conviction for possession of a firearm by a serious violent felon. His parole
agreement allowed a supervising parole officer or an authorized DOC official to
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 12 of 16 perform a “reasonable search” of “property under [Harper’s] control,” if they
had “reasonable cause to believe that the parolee is violating or is in imminent
danger of violating a condition to remaining on parole.” (State’s Ex. 4). The
record reveals that Parole Officer Jellison received a tip that Harper was
traveling to New York and dealing narcotics in Indianapolis. Parole Officer
Jellison scheduled a parole visit for Harper at his office. During this visit,
Harper failed a drug test indicating narcotics use and admitted to traveling out-
of-state without permission, both of which were violations of Harper’s parole.
Immediately thereafter, Parole Officer Jellison completed a parole search of
Harper’s residence, which yielded a receipt for a storage unit rented in Harper’s
name. Parole Officer Jellison and Harper then went to the storage unit, which
contained property under Harper’s control, and unlocked the unit with one of
Harper’s keys. In plain view, Parole Officer Jellison observed a black handgun
and a large, clear Ziploc bag containing a block of white substance, which he
suspected to be cocaine. Parole Officer Jellison immediately stopped the search
and advised an IMPD officer present of what he had observed. Law
enforcement then obtained a warrant for the subsequent search of Harper’s
storage unit.
[21] Based on the totality of the circumstances in this case, we find that the parole
and law enforcement officers had reasonable suspicion to believe that Harper,
who had actual knowledge of the search terms of his parole conditions, was
engaged in criminal activity. Because the search at issue was predicated on the
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 13 of 16 parole conditions and reasonable suspicion, we reverse the trial court’s grant of
Harper’s motion to suppress and remand for further proceedings.
2. Indiana Criminal Rule 4(C)
[22] Harper argues that the trial court erred by denying his motion for discharge
pursuant to Indiana Criminal Rule 4(C), which provides in relevant part:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar[.] . . . Any defendant so held shall, on motion, be discharged.
Thus, under Criminal Rule 4(C), a defendant may seek and be granted a
discharge if he is not brought to trial within the proper time period. State v.
Delph, 875 N.E.2d 416, 419 (Ind. Ct. App. 2007), reh’g denied, trans. denied. In
reviewing Criminal Rule 4 claims, we review questions of law de novo, and we
review factual findings under the clearly erroneous standard. Austin v. State, 997
N.E.2d 1027, 1039-40 (Ind. 2013).
[23] The purpose of Indiana Criminal Rule 4(C) is to promote early trials, not to
discharge defendants. Fuller v. State, 995 N.E.2d 661, 665 (Ind. Ct. App. 2013),
trans. denied. Subject to the exceptions listed in Rule 4(C), the State has an
affirmative duty to bring the defendant to trial within one year of being charged
or arrested. Wood v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App. 2013), trans.
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 14 of 16 denied, cert. denied. The defendant is neither obligated to remind the court of the
State’s duty nor is required to take affirmative steps to ensure that he is brought
to trial within the statutory time period. Id. At the same time, Criminal Rule 4
is not intended to be a mechanism for providing defendants a technical means
to escape prosecution. Austin, 997 N.E.2d at 1037. When a defendant moves
for discharge, he bears the burden of showing that he has not been timely
brought to trial and that he is not responsible for the delay. Wood, 999 N.E.2d
at 1060.
[24] Harper maintains that the Rule 4(C) clock should have begun to run on June
30, 2016, while he was incarcerated for his parole violation. In support of his
position, Harper relies on Rust v. State, 792 N.E.2d 616 (Ind. Ct. App. 2003),
trans. vacated, in which this court reversed the denial of a motion for discharge.
There, our Court concluded that the Criminal Rule 4(C) clock was tolled when
the defendant failed to appear for hearings but restarted once the trial court and
State were notified of the defendant’s incarceration in another county. Id. at
620.
[25] Harper contends that Rust is similar to the facts here because “the State knew all
along where Harper was incarcerated because he was in State custody the
whole time and the principal witness in this case, Parole Officer Jellison[,] is the
very person who took him back into the custody of the DOC.” (Harper’s Br.
22). Harper points to a copy of an email communication between two Marion
County Sheriff’s Department employees on June 30, 2016. The email contains
a warrant issued by the trial court, details Harper’s location, and requests that a
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 15 of 16 detainer be placed on Harper for the “Marion Co. Sheriff Office.” (Harper’s
Exhibit B). The email also contains what purports to be a handwritten notation
that the warrant was “[s]erved 6-30-16.” (Harper’s Exhibit B).
[26] However, under the facts of this case, we cannot agree with Harper’s contention
that the Criminal Rule 4(C) clock should have begun to run on June 30, 2016.
Here, Harper was incarcerated as a parole violator on June 20, 2016 until
August 16, 2017. The information for the instant case was filed on June 29,
2016; however, the CCS, which is the official record of the trial court, indicates
that he was not served with the arrest warrant until August 16, 2017. See Ind.
Trial Rule 77(B). Criminal Rule 4(C) provides that the one-year time period
begins “from the date the criminal charge against such defendant is filed or
from the date of his arrest on such charge, whichever is later[.]” Harper was
not held under this case until he was served with the arrest warrant in August
16, 2017. As a result, we conclude that the trial court properly denied Harper’s
motion to discharge in accordance with Criminal Rule 4(C).
[27] Affirmed in part, reversed in part, and remanded for further proceedings.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 18A-CR-2811 | October 30, 2019 Page 16 of 16