FILED
Aug 10 2020, 9:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Jeffrey A. Baldwin
Attorney General of Indiana Tyler D. Helmond
Indianapolis, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, August 10, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CR-61
v. Appeal from the Marion Superior
Court
Jarrel Luke Ellis, The Honorable Jennifer Harrison,
Appellee-Defendant. Judge
Trial Court Cause No.
49G20-1906-F2-24884
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-61| August 10, 2020 Page 1 of 12
Case Summary
[1] The State appeals the trial court’s order granting Jarrel Ellis’ motion to suppress
evidence seized as a result of a compliance check of Ellis’ residence while Ellis
was serving a community corrections sentence. We reverse and remand.
Issue
[2] The State raises one issue for our review, which we revise and restate as
whether the trial court erred by granting Ellis’ motion to suppress.
Facts
[3] The relevant events occurred in 2019, as Ellis was serving a home detention
sentence with Marion County Community Corrections (“Community
Corrections”), following Ellis’ guilty plea for dealing in cocaine, a Class B
felony. Pursuant to Ellis’ Community Corrections placement, Ellis signed a
“Marion County Community Corrections Contract.” State’s Ex. 2. The
Contract provided, in relevant part:
You waive your right against search and seizure, and shall permit
MCCC staff, or any law enforcement officer acting on MCCC’s
behalf, to search your person, residence, motor vehicle, or any
location where your personal property may be found, to insure
compliance with the requirements of community corrections.
Id. Jameil Parker, Ellis’ case manager for Community Corrections, began to
monitor Ellis in January 2019. Parker developed suspicions regarding Ellis’
compliance with the terms of the Contract because Ellis “requested to visit
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expensive restaurants while he was workin[g] a part-time temp[orary] service
job. . . .” Tr. Vol. II pp. 5-6. Parker shared her suspicions with Jill Jones, a
Community Corrections law enforcement liaison, and asked Jones to complete
a compliance check at Ellis’ home.
[4] On June 20, 2019, Jones went to Ellis’ residence with “the Northwest Flex
Team” of law enforcement officers to complete the compliance check. 1 Tr. Vol.
II p. 25; Appellant’s App. Vol. II p. 12. The Flex Team conducted a
“protective sweep” to ensure the safety of the Flex Team and the compliance
officer before starting the compliance check. Appellant’s App. Vol. II p. 13. In
Ellis’ bedroom, the officers observed: (1) a plastic container with a green leafy
substance, which the officers believed to be marijuana; and (2) a fake book with
a hidden compartment that held several bundles of cash. The officers ended the
compliance check of the residence and applied for a search warrant. When the
officers executed the search warrant, the ensuing search yielded several
weapons; a substance believed to be cocaine; paraphernalia consistent with
drug dealing; digital scales; and a large amount of cash.
[5] On June 24, 2019, the State charged Ellis with: Count I, dealing in cocaine, a
Level 2 felony; Count II, possession of cocaine, a Level 3 felony; Counts III,
IV, V, VI, and VII, unlawful possession of a firearm by a serious violent felon,
Level 4 felonies; Count VIII, neglect of a dependent, a Level 5 felony; Count
1
Jones testified that the Northwest Flex Team included Scott Nichols, Chris Chatman, Officer Chin, Officer
Soloman, and Tiffany Wren. Jones also testified that she does not conduct compliance checks alone.
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IX, escape, a Level 6 felony; Count X, possession of a controlled substance, a
Level 6 felony; and Count XI, possession of marijuana, a Class A
misdemeanor.
[6] On December 4, 2019, Ellis filed a motion to suppress the evidence seized
during the search of his home. Ellis argued that the search violated his rights
under Article 1, Section 11 of the Indiana Constitution and the Fourth
Amendment to the United States Constitution because: (1) the Community
Corrections Contract did not unambiguously provide that Ellis waived his
rights against a suspicionless search; and (2) law enforcement did not have
reasonable suspicion to search Ellis’ home.
[7] At the hearing on December 10, 2019, the trial court orally granted Ellis’
motion to suppress. Specifically, the trial court found that the Community
Corrections Contract did not include a waiver of searches without reasonable
suspicion. The State now appeals pursuant to Indiana Code Section 35-38-4-
2(5). 2
2
The statute provides:
Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken
by the state in the following cases: . . .
(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order
is to preclude further prosecution of one (1) or more counts of an information or
indictment.
Ind. Code § 35-38-4-2(5). The State contends that the “suppression of evidence prevents the State from going
forward on the charges.” Appellant’s Br. p. 4.
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Analysis
[8] The State argues that the trial court improperly granted Ellis’ motion to
suppress.
When the State appeals from a negative judgment, it bears the
burden to show that the trial court’s ruling on the suppression
motion was contrary to law. . . . We evaluate the trial court’s
findings of fact deferentially, neither reweighing the evidence nor
reassessing the credibility of the witnesses. . . . We will affirm if
we find within the record substantial evidence of probative value
to support the judgment. . . . But we review the trial court’s
conclusions of law, . . . de novo.
State v. Brown, 70 N.E.3d 331, 335 (Ind. 2017) (citations and quotations
omitted).
[9] The issue for our determination is not whether there was reasonable suspicion
to search Ellis’ home, but only whether, based upon the terms of the
Community Corrections Contract, Ellis waived his right to challenge the
search. 3 The trial court held that, notwithstanding the Contract, Community
Corrections lacked reasonable suspicion to search Ellis’ home.
[10] In State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), our Supreme Court clarified
the law regarding searches of probation and community corrections
3
Neither Ellis nor the State make separate arguments that the analysis is different on this issue between the
Indiana Constitution and the Fourth Amendment on this issue; therefore, we need not address the issue in
our opinion.
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participants. 4 Vanderkolk resided with Jordan Sullivan, who was on home
detention through a community corrections program. Community corrections
officers conducted a “routine warrantless search to assure Sullivan’s compliance
with the conditions of the program.” Vanderkolk, 32 N.E.3d at 776. The search
of the home revealed illegal drugs and paraphernalia, and Vanderkolk was
charged as a result. The trial court denied Vanderkolk’s motion to suppress the
evidence found in the common areas of the home because the officers “had
consent to search.” Id. The trial court, however, granted the motion to
suppress evidence found in Vanderkolk’s private bedroom.
[11] The State appealed and relied on Samson v. California, 547 U.S. 843, 126 S. Ct.
2193 (2006), for the proposition that the search did not violate the Fourth
Amendment of the United States Constitution because of Sullivan’s community
corrections status and Sullivan’s consent to the search. Vanderkolk countered
that: (1) a person in a probation or community corrections home detention
program is entitled to Fourth Amendment protections; and (2) officers must
have reasonable suspicion of either criminal activity or a violation to conduct a
compliance check.
[12] On appeal, our Supreme Court acknowledged that: (1) a trial court may place a
person on home detention as part of a community corrections program, see Ind.
Code § 35-38-2.6-4.5; (2) “[p]lacement under either probation or a community
4
For purposes of the Supreme Court’s opinion in Vanderkolk, our Supreme Court noted that the terms
“probation” and “community corrections” would be used interchangeably.
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corrections program is a ‘matter of grace and a conditional liberty that is a
favor, not a right[,]’” Vanderkolk, 32 N.E.3d at 777 (quoting Cox v. State, 706
N.E.2d 547, 549 (Ind. 1999)); and (3) probation searches “are necessary to the
promotion of legitimate [state] interests.” Id. at 779.
[13] In analyzing Samson, the Court held: “Samson dispenses with the need for
reasonable suspicion where there exists a valid parole search condition
permitting such searches, it does not authorize suspicionless searches based on
a parolee’s status alone.” Id. Although Samson involved a parole search
condition, whereas Vanderkolk involved a search pursuant to a home detention
placement, our Supreme Court found Samson instructive. The Court held:
Because probation, like parole, involves the conditional release of
a prisoner who would otherwise be subject to unrestricted
searches during his or her incarceration, because neither
probationers nor parolees enjoy the absolute liberty to which
other citizens are entitled, because probation searches are
necessary to the promotion of legitimate government interests,
because the willingness of judicial officers to grant conditional
release is likely to be impaired if supervision is uncertain or
difficult, and because searches of probationers or community
corrections participants require that they be unambiguously
informed of a clearly expressed search condition in the
conditions of release to probation or community corrections, we
conclude that the holding in Samson is applicable to probationers
and community corrections participants. We therefore hold that
Indiana probationers and community corrections participants, who have
consented or been clearly informed that the conditions of their probation
or community corrections program unambiguously authorize warrantless
and suspicionless searches, may thereafter be subject to such searches
during the period of their probationary or community corrections status.
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Id. at 779 (emphasis added).
[14] After Vanderkolk, our Court decided Hodges v. State, 54 N.E.3d 1055 (Ind. Ct.
App. 2016), which we find persuasive. In Hodges, the defendant signed the
following acknowledgement of the terms of his probation: “You waive your
right against search and seizure, and shall permit a Probation Officer, or any
law enforcement officer acting on a Probation Officer’s behalf, to search your
person, residence, motor vehicle, or any location where your personal properly
may be found, to insure compliance with probation.” Hodges, 54 N.E.2d at
1057. Officers then received several tips that Hodges was manufacturing
methamphetamine. Subsequently, a warrantless search of Hodges’ garage
yielded a weapon, a white crystal-like substance, and other items used to
manufacture methamphetamine. Accordingly, the State charged Hodges with
various drug offenses. Hodges filed a motion to suppress the seized evidence,
which the trial court denied.
[15] On appeal, Hodges argued that the search was not supported by reasonable
suspicion. We noted: “The crux of the Vanderkolk holding is that a probation
search need not be supported by reasonable suspicion and may be predicated
solely upon a valid search condition contained in the conditions of probation.
Thus, a probationer’s argument that a probation search lacked reasonable
suspicion is unequivocally no longer a legitimate objection . . . .” Id. at 1059.
[16] In analyzing the terms of Hodges’ probation, our Court held that the language,
“albeit somewhat minimal, was sufficient to constitute a clearly expressed
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search condition, as it specifically advised Hodges that he was waiving his ‘right
against search and seizure.’” Id. at 1061. Our Court further held:
Although Hodges posits that this mere reference to the right
against search and seizure did not clearly express to him exactly
what constitutional protections he was giving up when
consenting to the rules of probation, we agree with the State that
it would make little sense to require a boilerplate reference to our
federal or state constitutions in order for the search condition to
be considered valid. In light of our supreme court’s expansive
holding in Vanderkolk, and its observation that “the willingness of
judicial officers to grant conditional release is likely to be
impaired if supervision is uncertain or difficult,” 32 N.E.3d at
779, we think that the language used here was within
constitutional parameters.
Id.
[17] Here, pursuant to Ellis’ home detention placement, he agreed to the following:
You waive your right against search and seizure, and shall permit
MCCC staff, or any law enforcement officer acting on MCCC’s
behalf, to search your person, residence, motor vehicle, or any
location where your personal property may be found, to insure
compliance with the requirements of community corrections.
State’s Ex. 2. This language is almost identical to the waiver provision in
Hodges. As in Hodges, we conclude that this language was sufficient to waive
Ellis’ rights against search and seizure and to authorize a suspicionless search.
Accordingly, the officers did not need reasonable suspicion to search Ellis’
residence.
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[18] Despite the almost identical language, Ellis attempts to distinguish Hodges based
upon Jarman v. State, 114 N.E.3d 911 (Ind. Ct. App. 2018), trans. denied.
Jarman signed a community corrections agreement that provided as follows:
In consideration of the opportunity to participate in a
Community Corrections program rather than serve my sentence
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.
Jarman, 114 N.E.3d at 913. Officers searched Jarman’s residence based on an
anonymous tip and found a powdery substance on Jarman’s person,
methamphetamine, and several other items. Jarman was charged with several
drug offenses and moved to suppress the seized evidence. The trial court
denied Jarman’s motion.
[19] On appeal, our Court reversed the trial court’s denial of the motion to suppress
and held:
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
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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.” 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” also “unambiguously authorizes”
suspicionless searches. We hold that it does not.
Id. at 914-15 (emphasis in original). Our Court went on to conclude that, “[i]f
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.’” Id. at 915 (citations omitted).
[20] We respectfully disagree with the reasoning and outcome in Jarman. The
language of the community corrections agreement in Jarman waived any
requirement for a warrant, and the agreement was not required to specifically
mention a waiver of “reasonable suspicion.” Moreover, even if the reasoning in
Jarman is correct, we do not find Jarman applicable here. Jarman held that the
second sentence in Jarman’s contract limited the scope of the waiver to exclude
suspicionless searches; whereas Ellis’ Contract does not contain comparable
limiting language. Accordingly, Ellis’ reliance upon Jarman is misplaced.
[21] Our Supreme Court has held that community corrections participants “who
have consented or been clearly informed that the conditions of their . . . community
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corrections program unambiguously authorize warrantless and suspicionless searches
may thereafter be subject to such searches during the period of their . . .
community corrections status.” Vanderkolk, 32 N.E.3d at 779 (emphasis
added). As in Hodges, Ellis’ Community Corrections Contract unambiguously
authorized warrantless and suspicionless searches, without limitation.
Accordingly, the officers did not need reasonable suspicion to search Ellis’
residence. The trial court’s decision to grant Ellis’ motion to suppress was
erroneous.
Conclusion
[22] The trial court improperly granted Ellis’ motion to suppress. We reverse and
remand to the trial court to enter an order consistent with our opinion.
[23] Reversed and remanded.
Kirsch, J., and Pyle, J., concur.
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