A man convicted of illegally possessing a gun in the residence of a home detainee lost an argument that evidence discovered during a search of the home should be suppressed.
While Marion County Community Corrections officers conducted a home visit of Kurt McElroy’s home consistent with his stepson’s home detention agreement, the officers noted the smell of burnt marijuana and later found a handgun on top of a kitchen cabinet.
Pursuant to the home detention agreement, no one residing in the home could possess or use non-prescribed drugs or weapons. After receiving consent from McElroy’s wife to search the home, the officers found a baggie of marijuana in a drawer, and McElroy affirmed that the gun was his.
McElroy was then charged with Level 4 felony unlawful possession of a firearm by a serious violent felon and Class A misdemeanor possession of marijuana. A trial court denied McElroy’s motion to suppress the evidence uncovered during the home search, but he argued the items were seized as a result of a warrantless search that violated his federal and state constitutional rights.
The Indiana Court of Appeals rejected McElroy’s argument, noting that his stepson had consented to searches of his residence and that the gun was in a common area immediately adjacent to where he primarily resided in the home. Areas under his common authority could be searched.
“This was a risk McElroy assumed by allowing Demarqus (Whitley), a home detention participant, to live with him. Accordingly, McElroy’s Fourth Amendment rights were not violated by the officers’ search of the common areas of the residence, specifically the kitchen, and the subsequent seizure of the handgun,” Senior Judge Betty Barteau wrote for the panel.
Likewise, the appellate court concluded the search was reasonable under the totality of the circumstances in Kurt McElroy v. State of Indiana, 18A-CR-2930. As to the marijuana, the appellate court pointed out that the search that lead to its discovery was not illegal because McElroy’s wife had consented to a search of the home.
“Although there is no indication that Tamika was advised of her Miranda rights or her right to refuse consent, she was not arrested or restrained in any way. Further, Tamika told the officers she is a nurse, and nothing in the record suggests that she was unable to understand the consent form,” Barteau wrote. “At the suppression hearing, Tamika testified that one of the officers told her that if she did not cooperate she would go to jail and that they would get a warrant to search the house.
“The officers were at the home to assist with a home detention home visit and not engaged in illegal activity prior to asking for Tamika’s consent to search. Moreover, the officers were not deceptive as to their identity or the purpose of the search,” the panel concluded.
It therefore affirmed the denial of McElroy’s motion to suppress.