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Lawyer to justices: 4th Amendment waivers require reasonable suspicion

February 11, 2015

Community corrections officers should have cause before searching the home of someone who has signed a waiver of their Fourth Amendment rights as a condition of probation, a lawyer argued recently before the Indiana Supreme Court.

“What I’m saying is, wavier notwithstanding, you can’t go into somebody’s house and search absent some type of reasonable suspicion,” Lafayette attorney Bruce Graham said during oral arguments Jan. 21 in State of Indiana v. Brishen Vanderkolk, 79S04-1411-CR-718.

loretta rush Rush

In the instance of someone on home detention, Chief Justice Loretta Rush asked Graham whether a person on probation for a drug conviction, for example, should be subject to random searches to determine whether there was evidence of drugs in the home.

“Community correction officers can never go in that home to see if it’s appropriate for house arrest without reasonable suspicion?” she asked.

“That’s what I’m saying,” Graham said, giving some justices pause. He said a distinction could be made between people on probation and people on parole based on the Supreme Court of the United States’ holding in Samson v. California, 547 US 843 (2006), in which the court affirmed the warrantless search of a parolee who was arrested and charged with possession of methamphetamines.

The issues in Vanderkolk arise from the arrest of someone who wasn’t subject to a rights waiver as a condition of probation, but whose roommate was. Brishen Vanderkolk was charged with Class D felony maintaining a common nuisance and misdemeanor counts of possession of marijuana and dealing marijuana after community corrections officers, smelling marijuana, searched the home he shared with Jordan Sullivan. They found contraband in Vanderkolk’s bedroom, but he wasn’t in the house at the time.

Sullivan had signed a waiver allowing searches and seizures of his person, property or vehicle at any time, but a trial court suppressed evidence against Vanderkolk found in the bedroom, but not the common areas of the house. The Court of Appeals affirmed, finding that Vanderkolk had a reasonable expectation of privacy.

Before Graham suggested such searches require reasonable suspicion, Deputy Attorney General Ian McLean argued for reversing the order suppressing evidence against Vanderkolk.

“The court erred when it held that persons supervising the release of convicted individuals must first learn of the violation of the terms of their release before investigating or supervising their behavior,” he said.

McLean also argued that Samson supports the state’s position because Indiana has a different statutory framework than California, where parole is employed for inmates on supervised release from convictions for violent crimes. The opinion in that case did not indicate how Fourth Amendment waivers would apply under different state laws, he said.

“The touchstone (in Samson) is reasonableness of the search, not suspicion,” McLean said.

But a majority of justices quizzed McLean on why a community corrections waiver would include the language about probable cause if it wasn’t a requirement for a search. He said the language was an attempt to balance the special needs of community corrections and probation officers to enforce court-ordered conditions against the requirement of probable cause for a search by law enforcement officers.

In opposition to Graham’s position, McLean argued probationers have no reasonable expectation of privacy. “It does the same violence to the waiver to insist that this is simply requiring a warrant or a probable cause showing for any compliance check.”

Robert Rucker Rucker

Justices Brent Dickson, Mark Massa and Robert Rucker appeared skeptical about why the reasonable suspicion language would be included in the waivers if, in fact, it wasn’t a requirement for a search. But several justices also recognized a special need for enforcing conditions of probation. Rush noted the U.S. Supreme Court has yet to rule on whether reasonable suspicion is required to search the property of a probationer.

Justice Steven David seemed most skeptical of Graham’s position. “If I’m a concerned trial judge and I want to change or modify behavior, and I want a system where I can monitor and provide some consequences if my expectations are not met, with a ruling as you’re requesting, it seems to me we’re going to dilute the number of trial judges who are going to be willing to allow someone to be on probation,” David said.

Dickson also challenged Graham on this point. “We’re grappling with the growing need for community corrections and we have a new criminal code that puts a new focus on rehabilitation instead of vindictive justice,” he said. “We do need to have a method of follow-up” including supervision and inspection.

Graham said nothing would prevent a community corrections or probation officer from visiting the home of a program participant. If a probationer refused to allow entrance on a showing of probable cause such as an odor of marijuana or refused to submit to drug screens, for instance, this would be a violation that likely would result in a judge sending the person to jail.

Dickson presented such a scenario to McLean as a possible middle ground, but McLean replied, “It’s bad business to say you have a constitutional right, but if you exercise it, we’re going to put you in jail.” He said the terms of probation waivers, along with the follow-ups for compliance, serve as an incentive to people in community corrections and probation to comply with the terms and conditions of their release.

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While the U.S. Supreme Court hasn’t decided the issue of whether reasonable suspicion is required to search a probationer’s home, Graham pointed to an Indiana case on that point, State of Indiana v. Schlechty, 926 N.E.2d 1 (Ind. 2010). There, Rucker wrote for the court that “a warrantless search of a probationer’s property that is conducted reasonably, supported by a probation search term and reasonable suspicion of criminal activity, complies with the dictates of the Fourth Amendment.”

“Prior to Schlechty, there was a series of opinions from the Court of Appeals that said the same thing,” Rucker said. “This issue predates Schlechty on the question of, do you need probable cause or reasonable suspicion to enter the home of a probationer.”

“I think I’m agreeing with you,” Graham said.

Graham warned of a sliding scale of waivers surrendering some Fourth Amendment protections. He noted thousands of college students have signed diversion agreements for offenses such as underage drinking, and those agreements theoretically expose them to warrantless searches.

“You can’t single people out based on a waiver and nothing else, because if you can, there’s nothing preventing the police department from getting a list and going to each and every house and searching it without any reason,” Graham said. “That cannot, hopefully, be the result of all of this.”

McLean dismissed such concerns as “fanciful.”•

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