McElroy v. State

133 N.E.3d 201

Kurt MCELROY, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-2930

Court of Appeals of Indiana.

FILED September 25, 2019

Attorney for Appellant: Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana

Barteau, Senior Judge.

Statement of the Case

[1] Kurt McElroy brings this interlocutory appeal from the trial court's denial of his motion to suppress. We affirm.

Issue

[2] McElroy presents one issue for our review, which we restate as whether the search of his home violated his federal and state constitutional rights.

Facts and Procedural History

[3] Demarqus Whitley, McElroy's step-son, was placed on home detention through Marion County Community Corrections (MCCC) in October 2017. Several of the community corrections program conditions to which Demarqus agreed provide:

If you do not own, rent or lease the residence in which you reside, you must advise the owner(s) of the residence of the conditions of Electronic Monitoring.

You must not possess alcohol or non-prescribed drugs on your person, in your residence or in your property at any time. The residence in which you are residing must be alcohol and non-prescribed drug-free as well. If other residents fail to comply, you will be required to move.

You waive your right against search and seizure, and shall permit MCCC staff, or any law enforcement officer acting on a [sic] MCCC's behalf, to search your person, residence, motor vehicle, or any location where your personal property may be found, to insure compliance with the requirements of community corrections.

You must not use, purchase or possess weapons, firearms, or ammunition. Any weapons, firearms, or ammunition found in the residence where you reside will be confiscated and will result in the immediate filing of a Notice of Violation with the Court. There are to be no weapons in the residence regardless if any residents have a valid weapon permit.

Ex. Vol., State's Ex. 1, p. 4. While Demarqus was participating in the program, he resided at the home of his mother, Tamika Whitley, and her husband, McElroy. The living arrangements were such that Demarqus slept on the couch in the living room, kept his belongings next to the couch and in a closet in the living room, and used the downstairs bathroom.

[4] On November 7, 2017, Jill Jones, law enforcement liaison with MCCC, and several police officers conducted a home visit to ensure Demarqus' compliance with his home detention conditions. At the door of the residence, Jones explained to McElroy and Demarqus that she was there to perform a home visit. Immediately upon entering the residence, Jones and the officers smelled the odor of burnt marijuana. The officers then began to perform a routine sweep of the house for safety. While performing the protective sweep, the officers observed a green leafy substance, thought to be marijuana, in plain view on the half wall of the staircase.

[5] The officers also encountered a locked bedroom door upstairs. They asked for the key to unlock the door but were informed that it was the bedroom of an older daughter who had the key and was at work. Tamika told the officers that no one was in the bedroom and that they could kick in the door if necessary, but the officers declined to do so. McElroy assisted the officers by using some tools to unlock the door, and the officers were then able to check the room for safety purposes.

[6] As the officers were performing the safety sweep, Tamika recorded video footage on her cell phone, which was later transferred to a flash drive and admitted as an exhibit at the suppression hearing. Tamika can be heard on the video stating that Demarqus lives in the front room, that all of his belongings are downstairs, and that the area of the couch is "his area." Ex. Vol., Defendant's Ex. D. At the suppression hearing, she testified that she told Jones and the officers they could search Demarqus' "area." Tr. Vol. II, p. 49.

[7] Upon completing the protective sweep, two officers were in the kitchen discussing how to proceed given the odor of the burnt marijuana and the discovery of the marijuana leaves. At that time, one of the officers discovered a handgun on top of a kitchen cabinet. McElroy told the officers that the gun was his. Following the discovery of the handgun, one of the officers spoke with Tamika, and she signed a consent to search. The officers performed a search of the house, during which they found a bag of marijuana in a dresser drawer in the master bedroom.

[8] Based upon these events, the State charged McElroy with unlawful possession of a firearm by a serious violent felon, a Level 4 felony,¹ and possession of marijuana, a Class A misdemeanor.² McElroy filed a motion to suppress, and, following a hearing, the trial court entered its findings and order denying the motion. This interlocutory appeal ensued.

Discussion and Decision

[9] McElroy contends the trial court erred in failing to suppress the handgun found in the kitchen and the bag of marijuana found in the master bedroom because these items were seized as a result of a warrantless search that violated his federal and state constitutional rights. The State argues that, because Demarqus gave his consent for a search of his residence and agreed to inform the owners of his residence of his home detention conditions, the officers had authority to search McElroy's residence.

[10] We review the denial of a motion to suppress similar to other sufficiency matters. Primus v. State , 813 N.E.2d 370, 373 (Ind. Ct. App. 2004). When reviewing a trial court's denial of a defendant's motion to suppress, we examine whether substantial evidence of probative value exists to support the court's decision. Berry v. State , 121 N.E.3d 633, 636-37 (Ind. Ct. App. 2019), trans. denied . We neither reweigh the evidence nor judge the credibility of witnesses; rather, we consider the evidence most favorable to the ruling together with any adverse evidence that is uncontradicted. Primus , 813 N.E.2d at 373. Nevertheless, the constitutionality of a search or seizure is a question of law, which we review de novo. Wertz v. State , 41 N.E.3d 276, 279 (Ind. Ct. App. 2015), trans. denied .

A. Handgun

1. Fourth Amendment

[11] The Fourth Amendment to the United States Constitution protects people from unreasonable search and seizure. U.S. CONST . amend. IV. A search warrant is generally a prerequisite to a constitutionally proper search and seizure. Halsema v. State , 823 N.E.2d 668, 676 (Ind. 2005). When a search is conducted without a warrant, the burden is on the State to prove that an exception to the warrant requirement existed at the time of the search. Id. One such exception is a valid consent to search. Primus , 813 N.E.2d at 374. Our Supreme Court has specifically recognized an exception to the warrant requirement in a search of the residence of a probationer or community corrections participant where the probationer or participant has in advance, by valid consent or term in conditions of release, authorized a warrantless, suspicionless search. State v. Vanderkolk , 32 N.E.3d 775, 780 (Ind. 2015).

[12] As set out above, Demarqus' home detention conditions contained a waiver of his right against search and seizure of his person and residence to ensure his compliance with the requirements of his home detention. McElroy does not contest the validity of that waiver as it applies to Demarqus. However, the residence in which Demarqus was staying was not his residence; rather, the residence belongs to McElroy and Tamika, and neither of them were on probation or home detention or had signed a search waiver. Thus, McElroy argues that Demarqus' search waiver does not provide the authority for a search of McElroy's residence. Consequently, we must examine the privacy rights of individuals who have a community corrections³ participant living in their residence.

[13] It is well-established in this state that consent to search may be given by a third party who has common authority over the premises. Walker v. State , 986 N.E.2d 328, 334 (Ind. Ct. App. 2013), trans. denied .

Common authority rests on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the cohabitants has the right to permit the inspection in his or her own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. (quoting Hill v. State , 825 N.E.2d 432, 436 (Ind. Ct. App. 2005) ). On this specific issue, a leading Fourth Amendment treatise instructs:

If the probationer or parolee is sharing living quarters with someone else not on conditional release, the search may nonetheless extend to all parts of the premises to which the probationer or parolee has common authority. "A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee. If the Fourth Amendment rights of nonparolees living with parolees were not reduced, a parolee could avoid all warrantless parole searches by living with a nonparolee and asserting the nonparolee's constitutional rights, and thus emasculate one significant feature of the parole system."

5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.10(d) at 556-57 n.138 (5th ed. 2012) (quoting State v. Johnson , 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds ).

[14] As indicated by the excerpt above, consideration must also be given to the objectives of our conditional release system. Community corrections programs such as home detention serve as alternatives to imprisonment, and placement in these programs is a matter of grace and a conditional liberty that is a favor, not a right. Vanderkolk , 32 N.E.3d at 777....