Robert D. Rivard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be Dec 20 2019, 6:24 am

regarded as precedent or cited before any CLERK

court except for the purpose of establishing Indiana Supreme Court

Court of Appeals

and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Cara Schaefer Wieneke Curtis T. Hill, Jr.

Brooklyn, Indiana Attorney General of Indiana

Tyler G. Banks

Supervising Deputy Attorney

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert D. Rivard, December 20, 2019

Appellant-Defendant, Court of Appeals Case No.

19A-CR-1122

v. Appeal from the Vigo Superior

Court

State of Indiana, The Honorable Sarah K. Mullican,

Appellee-Plaintiff. Judge

Trial Court Cause No.

84D03-1603-F2-812

Altice, Judge.

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Case Summary

[1] Robert D. Rivard appeals the revocation of his probation, claiming that the

evidence seized from his residence by police was improperly admitted at the

revocation hearing because there was no reasonable suspicion to support a

warrantless search.

[2] We affirm.

Facts and Procedural History

[3] In 2016, Rivard pleaded guilty to Level 2 felony dealing in methamphetamine,

pursuant to a plea agreement. A portion of the plea agreement provided that

If the Defendant is sentenced to a term of probation, the

defendant agrees to waive his . . . constitutional rights under the

Fourth Amendment to the United States Constitution and Article

1, § 11 of the Indiana Constitution. The defendant waives these

constitutional rights as to his . . . person, vehicle, residence

cellular telephone(s), computer(s) and/or other electronic storage

or communication device(s). The defendant understands and agrees

that [the above] may be searched at any time, without notice, without

reasonable suspicion, without probable cause, or without a search

warrant. . . . . The defendant further understands and agrees that

any contraband or evidence of other criminal activity derived

from the search of the above listed property and/or items may be

introduced against him . . . at a probation revocation hearing

and/or criminal prosecution.

Appellant’s Appendix Vol. II at 78 (emphasis added).

[4] On October 18, 2016, the trial court sentenced Rivard to nineteen years of

incarceration with six years executed and thirteen years suspended to

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probation. Thereafter, on November 6, 2017, the trial court granted Rivard’s

petition for sentence modification, ordered the remainder of the sentence

suspended, and permitted Rivard to be placed on probation. That same day,

Rivard acknowledged, agreed to, and signed written conditions of probation

that included the following:

You agree to waive your constitutional rights under the Fourth

Amendment of the United States Constitution and Article 1,

Section 11 of the Indiana Constitution. You waive these

constitutional rights as to your person, vehicle or residence. You

agree that you, any vehicle you are operating or your residence may be

searched at any time without notice, probable cause, or a search warrant.

This search may be conducted by any Vigo County Adult

Probation Officer or any law enforcement officer acting with

reasonable suspicion that you may be in violation of any of the conditions

of your probation or direct placement. . . .

Id. at 123 (emphases added).

[5] In August 2018, the Vigo County Drug Task Force began conducting an

investigation regarding marijuana distribution in the Terre Haute area. At

some point prior to August 29, Terre Haute police received information that

Rivard was dealing marijuana from his Terre Haute residence. This

information was provided to Terre Haute Police Department Detective Brian

Bourbeau from Vivian Frazier after police officers had seized a quantity of

marijuana from Frazier’s residence. At some point, Frazier showed Detective

Bourbeau several text messages that she had received from Rivard, indicating

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that she and Rivard were negotiating a drug deal. Frazier had provided

information to Terre Haute detectives in the past that proved to be reliable.

[6] Detective Bourbeau contacted Rivard’s probation officer and confirmed that a

“Fourth Amendment Waiver” was included in Rivard’s conditions of

probation. Transcript at 7. On August 29, 2018, Detective Bourbeau and other

police officers proceeded to Rivard’s residence, knocked on the door, and

received no response. After a neighbor informed Detective Bourbeau that

Rivard drove a white Lexus and frequently made many trips to and from his

residence on a daily basis, Detective Rivard and some other officers maintained

surveillance in the vicinity.

[7] Later that same day, Detective Bourbeau observed a white Lexus approach the

area. One of the police officers stopped the vehicle for speeding and the driver

was identified as Rivard. Rivard was then transported to his home and

Detective Bourbeau informed him that they were going to search the residence.

At that point, Rivard volunteered that there was marijuana inside. During the

search, the officers seized a total of 203.7 grams of marijuana, a handgun, and

various drug paraphernalia.

[8] Rivard was arrested and charged with several criminal offenses that related to

the items that were seized in the search. The State also filed a petition to revoke

Rivard’s probation on September 4, 2018. At the revocation hearing, Rivard

objected to the admission of the evidence that was seized from his residence,

claiming that the State lacked reasonable suspicion to search his home in

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accordance with the conditions of probation. The State responded that

reasonable suspicion was not required in light of the waiver provision in the

plea agreement. The trial court overruled Rivard’s objection, admitted the

evidence, and determined that the State proved by a preponderance of the

evidence that Rivard had violated the conditions of his probation. 1 Thereafter,

Rivard was sentenced to an executed term of eight years of the previously

suspended sentence. Rivard now appeals.

Discussion and Decision

[9] When reviewing a probation revocation order, we consider the evidence most

favorable to the trial court’s judgment without reweighing the evidence or

judging the credibility of the witnesses. Cox v. State, 706 N.E.2d 547, 551 (Ind.

1999). The trial court has broad discretion to admit evidence, and reversal can

only be predicated on a finding of an abuse of that discretion and resulting

prejudice. Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007).

[10] The rules of evidence do not strictly apply in probation matters and trial courts

are “allow[ed] even more flexibility in the admission of evidence[.]” Indiana

Evid. Rule 101(d)(2); Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011).

Additionally, our Supreme Court has held that trial courts may consider any

relevant evidence bearing some substantial indicia of reliability in probation

1

The trial court did not address the issue regarding the legality of the search, and there was no specification

as to which condition of probation that Rivard violated.

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revocation hearings. Cox, 706 N.E.2d at 551. The considerable flexibility trial

judges enjoy in admitting evidence at probation revocation proceedings stems

from the recognition that “probationers are not entitled to the full array of

constitutional rights afforded defendants at trial.” Id. at 549.

[11] Among the protections lost by probationers, is the full applicability of the

exclusionary rule. Dulin v. State, 346 N.E.2d 746, 752-53 (Ind. Ct. App. 1976).

Searches of probationers and community corrections participants who have

either consented or been clearly informed that the conditions of the probation

or community corrections program unambiguously authorized warrantless and

suspicionless searches do not violate the Fourth Amendment. State v.

Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015). On the other hand, a waiver that

permits searches without a warrant and without probable cause does not

unambiguously authorize a search without a “reasonable suspicion” that the

defendant has violated the conditions of probation. See Jarman v. State, 114

N.E.3d 911, 915 (Ind. Ct. App. 2018), trans. denied. Additionally, evidence that

is seized illegally will be excluded from a revocation hearing only if it was

seized as a part of a continuing plan of police harassment or in a particularly

offensive manner. Henderson v. State, 544 N.E.2d 507, 512-13 (Ind. 1989).

[12] In this case, there is no evidence of law enforcement harassment or that the

police were even investigating Rivard before Frazier told Detective Bourbeau

that Rivard was dealing in marijuana. Rivard’s name surfaced only with regard

to a separate, ongoing, drug investigation in Terre Haute. And after the police

had become aware of Rivard’s suspected criminal conduct, they lawfully

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stopped his vehicle for speeding. Rivard has not established that the police

engaged in any inappropriately offensive behavior to obtain the items that were

seized during the search of his residence.

[13] Moreover, Rivard has not shown any violation of the exclusionary rule. The

plea agreement contains no qualifying language regarding the level of suspicion

required, if any, that must be satisfied before a search could be conducted. On

the other hand, the waiver language set forth in the conditions of probation

required “reasonable suspicion” of a probation violation before a lawful search

could be conducted. Notwithstanding the apparent conflict in the two waiver

provisions, we need not decide what language controls, as the State established

that there was a reasonable suspicion that marijuana would be found at

Rivard’s residence.

[14] More particularly, we note that reasonable suspicion exists when facts known to

a police officer, together with reasonable inferences from those facts, would

cause an ordinarily prudent person to believe that a crime has occurred or is

about to occur. Perez v. State, 981 N.E.2d 1242, 1249 (Ind. Ct. App. 2013),

trans. denied. Reasonable suspicion does not require law enforcement officers

to have the level of suspicion necessary for probable cause, but they must have

more than an unparticularized suspicion or hunch. Castner v. State, 840 N.E.2d

362, 366 (Ind. Ct. App. 2006). The totality of the circumstances of each case is

examined to determine whether there is a particularized and objective basis for

suspecting legal wrongdoing. Bush v. State, 925 N.E.2d 787, 791 (Ind. Ct. App.

2010). In short, a police officer must “be able to articulate some facts that

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provide a particularized and objective basis” for believing a crime has occurred

or is afoot. Marshall v. State, 117 N.E.3d 1254, 1259 (Ind. 2019). Information

received by police face-to-face with a person who is making statements against

his or her penal interest enhances the credibility and reliability of that person’s

information. Robinson v. State, 888 N.E.2d 1267, 1270-71 (Ind. Ct. App. 2008),

trans. denied.

[15] In this case, Rivard volunteered to police officers that marijuana was in his

residence. This “open admission” came immediately after the lawful traffic

stop when Detective Bourbeau told Rivard that his house was going to be

searched. Transcript at 8, 27-28. Rivard’s volunteered statement to police

officers that marijuana was in his house supplied the requisite reasonable

suspicion to justify a search. See Carter v. State, 634 N.E.2d 830, 833 (Ind. Ct.

App 1994) (recognizing that a defendant’s volunteered statements not made in

response to police interrogation are not barred by the Fifth Amendment to the

United States Constitution). Moreover, Rivard’s admission was consistent with

the information that Frazier conveyed to police. Frazier, who was not “on

contract as an informant,” told Detective Bourbeau that she had purchased

marijuana from Rivard, which was a statement against her penal interest.

Transcript at 22. See Robinson, 888 N.E.2d at 1270-71. Frazier corroborated

those statements when she showed Detective Bourbeau her text message

exchange with Rivard regarding an imminent drug transaction.

[16] Given Rivard’s admission that there was contraband in his house and Frazier’s

corroborated tip, it is readily apparent that the standard of reasonable suspicion

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was established that justified the search of his residence. Thus, Rivard has

failed to show that his Fourth Amendment rights were violated when the police

officers searched his residence. 2 For the foregoing reasons, we conclude that

the trial court did not err in revoking Rivard’s probation.

[17] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

2

Although Rivard cites to some authority and makes a general assertion that the search also violated Article

1, Section 11 of the Indiana Constitution, he advances no separate analysis under the state constitution.

Thus, the claim is waived. Lockett v. State, 747 N.E.2d 539, 541 (Ind. 2001); Jackson v. State, 996 N.E.2d 378,

383 n.3 (Ind. Ct. App. 2013), trans. denied. Waiver notwithstanding, we note that Article 1, Section 11 of the

Indiana Constitution turns on the reasonableness of police conduct rather than a defendant’s expectation of

privacy. See Carpenter v. State, 18 N.E.3d 998, 1001-02 (Ind. 2014) (holding that “reasonableness” focuses on

the totality of the circumstances considering the degree of knowledge that a violation has occurred, along

with the extent of intrusion that the method of the search imposes on the citizen’s usual activities, and the

extent of law enforcement needs). Here, only reasonable suspicion—at most—was required to search

Rivard’s residence pursuant to the conditions of probation, there was little or no intrusion upon Rivard’s

ordinary activities when police searched his residence, inasmuch as he was permitted to walk around the

house and smoke a cigarette, and the need to determine whether Rivard was continuing to sell drugs in

violation of the conditions of his probation was high in light of the fact that he had been placed on probation

for drug dealing.

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