Crone, J.
Case Summary
Braeden Terrell was placed on probation and was ordered not to possess or consume alcoholic beverages and not to possess firearms as conditions of his probation. As another condition of his probation, he waived “any and all” of his search and seizure rights under state and federal law and agreed to submit to reasonable searches of his property or residence at any time by a probation officer. [Record citations omitted throughout.] During a home visit, a probation officer found alcoholic beverages in Terrell’s kitchen and searched his nightstand for firearms and found marijuana and paraphernalia.
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The State charged Terrell with class A misdemeanor paraphernalia possession and class B misdemeanor marijuana possession. … After a hearing, the trial court issued an order granting Terrell’s motion to suppress, finding that “the search of the dresser/nightstand revealing suspected marijuana went well beyond the scope of the reasonable searches up to that point.” The State now appeals.
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Section 1 – The search of the nightstand did not violate the Fourth Amendment of the U.S. Constitution.
… In Vanderkolk v. State, [32 N.E.3d 775] (Ind. June 9, 2015), a Fourth Amendment case that was decided after this appeal was fully briefed, the Indiana Supreme Court held that probationers “who have consented or been clearly informed that the conditions of their probation … unambiguously authorize warrantless and suspicionless searches, may thereafter be subject to such searches during the period of their probationary … status.” … In his motion to suppress, Terrell argued that the search of the nightstand was unconstitutional because it was not based on suspicion that he possessed controlled substances. But under Vanderkolk, this is no longer a valid objection to the search. The question before us is simply whether the search was “reasonable.” [Citations omitted.]
Depending on the terms of a probationer’s consent, in many cases only the method of execution, and not the scope, of the search would be subject to a reasonableness challenge. Cf. Schlechty [v. State], 926 N.E.2d [1,] 6-7 [(Ind. 2010)] (“For example the Fourth Amendment would not condone the indiscriminate ransacking of a probationer’s home at all hours, or the pumping of his or her stomach, simply because a probation term included a search condition.”) [cert. denied]. The voluntariness of the consent could be considered questionable in light of a probationer’s negligible bargaining power and the Hobson’s choice of either signing the consent form or going to prison. [Footnote omitted.] But unless and until our supreme court limits Vanderkolk or further defines its parameters, we must conclude that where, as here, a probationer has waived any and all of his search and seizure rights and agreed to submit to searches of his property and residence at any time by a probation officer, a nondestructive daytime search of the probationer’s nightstand for firearms is not unreasonable under the Fourth Amendment.
Section 2 – The search of the nightstand did not violate Article 1, Section 11 of the Indiana Constitution.
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In prior cases, the Indiana Supreme Court has stated that the reasonableness of a search “turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred; 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and 3) the extent of law enforcement needs.” [Tuggle v. State, 9 N.E.3d 726, 735 (Ind. Ct. App. 2014), trans. denied] (citing Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005)). “[T]here may well be other relevant considerations under the circumstances.” Litchfield, 824 N.E.2d at 361. In light of Vanderkolk’s expansive endorsement of warrantless and suspicionless probation searches under the Fourth Amendment, it is questionable whether a separate Litchfield analysis is required here. Unless and until our supreme court specifically says otherwise, however, we shall continue to follow existing precedent and balance the three Litchfield factors and other relevant considerations in determining the reasonableness of probation searches under the Indiana Constitution.
… When the factors are balanced and Terrell’s consent to the search is taken into account, we conclude that the search of the nightstand was not unreasonable under the totality of the circumstances and therefore did not violate Article 1, Section 11 of the Indiana Constitution. Consequently, we reverse the trial court’s grant of Terrell’s motion to suppress and remand for further proceedings.
Reversed and remanded.
Brown, J., and Pyle, J., concur.