[Ed.: Defendant faced drug charges after a warrantless search to verify his roommate’s compliance with home detention revealed that both men possessed drugs and paraphernalia.] The defendant filed a motion to suppress all of the evidence, arguing that it stemmed from an improper search in violation of the Search and Seizure Clauses of the Indiana and United States Constitutions. The trial court granted the motion in part, finding “that the Community Corrections officers had consent to search the residence of Jordan Sullivan and such common areas as were available to him” and thus denying suppression of items found in such areas but suppressing “items found and/or seized in the private bedroom of [the defendant].” Appellant’s App’x at 61.
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1. Community Corrections Status and Warrantless Searches
The State first contends that the challenged search was authorized due to Sullivan’s community corrections status. Asserting that Samson [v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006)] is controlling, the State contends that Sullivan’s status as a home detention participant alone authorized the corrections officers’ presence in the residence (irrespective of reasonable suspicion) and that a protective sweep of the residence and the plain view of illegal drugs and paraphernalia once inside the residence combined to allow for the search and seizure of items in the common areas and in the defendant’s private bedroom.
In Samson, the United States Supreme Court permitted a suspicionless search where a parolee had agreed to a parole search condition authorizing searches “with or without a search warrant and with or without cause.” 547 U.S. at 846, 126 S. Ct. at 2196, 165 L. Ed. 2d at 255. While 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.
2. Warrantless Search as Authorized by Consent
The State alternatively argues that the search of the home was authorized because Sullivan had waived his Fourth Amendment rights and consented in advance to the search of his residence by signing his community corrections home detention participant handbook. Sullivan was required to sign the conditions that concluded with the following language:
I have been advised of my rights and understand that any Community Corrections staff, Law Enforcement Officer or Probation Officer may enter my residence at any time without prior notice to search upon probable cause.
Appellant’s Ex. 1 at 5, Tr. at 86.
Here the State argues that the waiver agreement notified Sullivan of his rights, enabling him to consent to suspicionless searches. The State seizes upon the waiver agreement language that stated: “I agree and specifically waive any and all rights as to search and seizure under the laws and constitutions of both the United States and the State of Indiana.” Appellant’s Reply Br. at 4 (quoting Appellant’s Ex. 1 at 5, Tr. at 86). This waiver agreement language, however, was fatally compromised by the waiver’s closing statement: “I have been advised of my rights and understand that any Community Corrections staff, Law Enforcement Officer or Probation Officer may enter my residence at any time without prior notice to search upon probable cause.” Appellant’s Ex. 1 at 5, Tr. at 86 (emphasis added). This language conditioned Sullivan’s search consent upon the existence of probable cause.
… In the present case, the search condition was not clearly expressed and the defendant was not unambiguously informed. The defendant consented only to searches upon probable cause, not to the type of search conducted in the present case. The ensuing search and seizures were thus unlawful under the Fourth Amendment, and the resulting evidence must be suppressed.….
3. Reasonable Suspicion as a Basis for Probation and Community Corrections Searches
The defendant contends that “[e]ven if a probationer, or . . . community corrections participant, waives Fourth Amendment rights as a condition of probation, a subsequent search must be based on reasonable suspicion.” Appellee’s Br. at 10. This argument urges that we limit the holding in Samson to cases involving parole and not extend it to probation or community corrections.
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But the similarities between parole and probation (or community corrections) are far greater than the differences. Both involve the conditional release from custody, subject to terms of compliance the violation of which can terminate release and return an individual to serve the sentence imposed. Both serve humane and restorative objectives that support their utilization. In both, a decision to place a defendant on such a conditional release program is predictably unlikely when the enforcement of the conditions of release is uncertain or procedurally difficult. And despite the differences on the continuum of personal liberty, we nevertheless find that parolees and probationers both share equivalent understandings that their freedom from incarceration is conditional and subject to monitoring.
…[W]e 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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Rush, C.J., and David and Massa, JJ., concur.
Rucker, J. concurs in result.