Attorney for Appellant Attorneys for Appellee
Ian A.T. McLean Steve Carter
Crawfordsville, Indiana Attorney
General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
_________________________________
No. 54S05-0503-CR-105
Brian Chism,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Montgomery Circuit Court, No. 54C01-9701-DF-3 & 54C01-9605-
CF-33
The Honorable Thomas K. Milligan, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 54A05-0401-
CR-43
_________________________________
March 14, 2005
SHEPARD, Chief Justice.
As technology marches forward, some Indiana trial courts have taken
to using home detention monitoring systems that employ global positioning
system equipment (commonly called “GPS”). Chism contends that the relevant
provisions of the Indiana Code do not authorize these devices. We hold
that they do.
As part of his sentence for conspiracy to deliver cocaine and driving
while intoxicated, the trial court ordered Chism to serve time on home
detention. The community corrections program charged with supervising
Chism’s detention deployed a traditional monitoring system. Chism wore an
ankle bracelet that sent a signal to a monitoring box in his home. The box
connected through a telephone line to the community corrections agency.
Late in 2003, the State filed a petition to revoke or modify Chism’s
placement on detention, alleging that he had spent the night away from his
home without permission and failed to pay the required user fees. The
trial court found that these violations had occurred. At a disposition
hearing in early 2004, the court ordered that Chism’s home detention be
supervised through GPS, permitting community corrections to identify
Chism’s exact location at any given moment with the aid of a satellite.
On appeal, the Court of Appeals affirmed in part and reversed in
part. Chism v. State, 813 N.E.2d 402 (Ind. Ct. App. 2004) vacated. It
rightly rejected Chism’s contentions of error concerning whether he had
violated the conditions of his placement. Ind. Appellate Rule 58(A). The
Court of Appeals also held that the Indiana Code did not permit assigning
GPS monitoring. We grant transfer and hold otherwise.
The home detention statutes differentiate between “offenders” and
“violent offenders.” Ind. Code Ann. § 35-38-2.5-1 to -13 (West 2004).[1]
An offender is anyone who is convicted of a crime (and any adjudicated
delinquent). Ind. Code Ann. § 35-38-2.5-4 (referring to Ind. Code § 11-8-1-
9). As a condition of home detention, a court must require an offender to
maintain “a working telephone in the offender’s home” and may require an
offender to maintain a “’monitoring device’ in the offender’s home or on
the offender’s person, or both.” Ind. Code Ann. § 35-38-2.5-6(6).
This case turns on the definition of “monitoring device.” The Code
says that a monitoring device is an electronic device that:
(1) is limited in capability to the recording or transmitting of
information regarding an offender’s presence or absence from the
offender’s home;
(2) is minimally intrusive upon the privacy of the offender or
other persons residing in the offender’s home; and
(3) with the written consent of the offender and with the
written consent of other persons residing in the home at the
time an order for home detention is entered, may record or
transmit:
(A) visual images;
(B) oral or wire communication or any auditory sound; or
(C) information regarding the offender’s activities while
inside the offender’s home.
Ind. Code Ann. § 35-38-2.5-3.
Chism acknowledges that the GPS system does not record or transmit any
of the sort of information described by subsection (3) above. He argues
instead that because GPS monitoring records more than his “presence or
absence” from his home, it does not qualify as a “monitoring device” under
the Code.
We see the statute as differentiating between (1) those devices that
require the offender’s consent (and that of others residing in the home) to
allow corrections personnel to watch or listen to things happening inside
the offender’s home, and (2) those devices that a court may require without
the offender’s consent, devices that simply tell whether the offender is
there or not without transmitting images or sound. The GPS monitoring
system falls in the latter category. The fact that the GPS will tell
corrections where Chism is when he is not at home does not destroy its
status as a device that broadcasts only location.
Thus, we hold the Code permits GPS monitoring and affirm the trial
court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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[1] All subsequent Code references are to the West 2004 edition.