COA reverses suppression of evidence found in hotel room based on home-detention rights waiver

The Court of Appeals of Indiana has reversed the suppression of evidence found during the search of a man’s hotel room after determining the defendant had waived his constitutional search-and-seizure protections in a home detention agreement.

In July 2020, Lamar Fox was placed on home detention through Marion County Community Corrections in a criminal matter unrelated to the instant case. The home detention contract contained the following search provision, which Fox acknowledged: “You waive your rights under the Fourth Amendment of the United States Constitution, as well as Article 1, Section 11 of the Indiana Constitution, regarding search and seizure of your person or effects.”

While Fox was on home detention, he became the focus of a drug investigation led by Detective Steven Brinker of the Indianapolis Metropolitan Police Department Interdiction Unit. Brinker wanted to search Fox’s hotel room in Indianapolis, but he did not believe he had sufficient probable cause to procure a search warrant.

In February 2021, Brinker emailed Jill Jones, the MCCC law enforcement liaison, to share his concerns about Fox, inquire about Fox’s placement and inquire if Jones would conduct a visit to Fox’s hotel room.

Jones investigated Fox’s records and discovered a home visit had already been requested due to concerns that Fox had been tampering with his monitoring gear. She also discovered Fox had been the subject of an administrative hearing in January 2021 for testing positive for cannabinoids and masking his GPS device.

After consulting with the Marion County Prosecutor’s Office, Jones contacted Brinker and informed him that she was ready to make a home visit to Fox’s hotel room and requested that members of the IMPD accompany her. During the subsequent visit, Jones and the officers saw suspected contraband in plain view and stopped their search.

Brinker obtained a search warrant for Fox’s hotel room and for a car believed to be connected to Fox. Execution of the search warrant netted additional items of suspected contraband.

Fox was subsequently charged with Level 4 unlawful possession of a firearm by a serious violent felon, Level 5 felony possession of methamphetamine, Level 6 felony possession of a controlled substance and Level 6 felony escape.

Fox responded with a motion to suppress.

Relying on Micheau v. State, 893 N.E.2d 1053 (Ind. Ct. App. 2008), trans. denied, he argued MCCC’s involvement in the warrantless search of his Budget 8 hotel room was a subterfuge for law enforcement, the search required probable cause and a warrant and, because both probable cause and a warrant were lacking, the search violated the Fourth Amendment, voiding the probable cause supporting the search warrant. He also argued the search was unreasonable under the totality of the circumstances in violation of Article 1, Section 11 of the Indiana Constitution.

In October 2021, the Marion Superior Court granted Fox’s motion to suppress, relying on Micheau and finding the search of Fox’s hotel room had been impermissibly initiated by law enforcement as part of a criminal investigation. The trial court made no findings of fact or conclusions concerning the search provision of Fox’s home detention contract, and the state’s motion to dismiss the charges against Fox was granted without prejudice.

But applying State v. Ellis, 167 N.E.3d 285 (Ind. 2021), the Court of Appeals in a Wednesday ruling.

“Here, Fox executed a home detention contract which contained a waiver provision which, if anything, is even more detailed in what rights he was waiving than the contract involved in Ellis, as Fox’s contract specifically provided that he waived his ‘rights under the Fourth Amendment of the United States Constitution, as well as Article 1, Section 11 of the Indiana Constitution, regarding search and seizure of your person or effects,’” Judge Patricia Riley wrote.

“In light of Ellis, we conclude that, due to Fox’s valid waiver of his constitutional rights, Jones was not required to have any degree of suspicion to initiate the home visit on Fox’s hotel room and was permitted to enter and search Fox’s hotel room regardless of IMPD’s involvement,” Riley wrote.

Further, the COA found Fox did not address the effect of his waiver through the search provision or contest its validity. It also found the rationale for the Micheau decision and concurring opinion doesn’t apply where those rights have been waived.

The case is State of Indiana v. Lamar Fox, 21A-CR-2445.

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