Preview:

FOR PUBLICATION

FILED
Mar 08 2012, 8:52 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MELISSA J. HALEY Ripstra Law Office Jasper, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

PAMELA J. HENSLEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.

) ) ) ) ) ) ) ) )

No. 63A01-1105-CR-195

APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Robert L. Arthur, Senior Judge Cause No. 63C01-1004-FD-258

March 8, 2012

OPINION - FOR PUBLICATION

KIRSCH, Judge

Pamela J. Hensley (Hensley) brings this discretionary interlocutory appeal from the trial court`s denial of her motion to suppress. She raises one issue on appeal, which we restate as whether the search of Hensley`s home violated her right to be free from unreasonable search and seizure guaranteed under the Fourth Amendment to the United States Constitution. We reverse and remand. FACTS AND PROCEDURAL HISTORY Hensley, who lives in a home at the North Side Trailer Court in Petersburg Indiana, is married to Robert Hensley (Robert). During the time in question, Robert was on probation through the Pike Circuit Court. The pertinent conditions of his

probation provided that Robert shall not possess or use any firearm and shall not consume or use any alcohol or controlled substance unless prescribed by a physician.  1 Appellant's App. at 34. An additional condition of probation allow[ed] a Probation Officer to visit his home and conduct a warrantless search.2 Id. In April 2010, Corporal Chad Tharp (Officer Tharp) of the Petersburg Police Department received a tip that Robert, who the officer knew to be on probation, was in
Robert`s written conditions of probation are not included in the record before us. Therefore, we refer to the conditions of probation described in the State`s Response to Defendant`s Motion to Suppress. Appellant's App. at 34.
1

In the State`s response to Hensley`s motion to suppress, the State contends that it was also a condition of probation that Robert waive[] his right against unreasonable search and seizure by the Probation Officer or anyone acting on behalf of the Pike County Probation Department. Appellant's App. at 34 (emphasis added). We cannot confirm whether Robert agreed to such a condition; however, we note that our court has found such a condition to be unconstitutional. See Fitzgerald v. State, 805 N.E.2d 857, 865-66 (Ind. Ct. App. 2004) (such a provision is invalid because it explicitly attempts to allow Probation Officers to perform unreasonable searches, even though it has repeatedly been stated that probationers enjoy a constitutionally protected right against such).
2

2

possession of marijuana. When deposed prior to trial, Officer Tharp could not recall who had provided the tip. Appellant's App. at 69-70. Officer Tharp took no action at that time. Three weeks after having received the marijuana tip, Officer Tharp was patrolling Hensley`s neighborhood when someone approached him and said that Robert possessed a firearm. Tr. at 11. Officer Tharp understood that he didn`t have enough for a search warrant, so on April 22, 2010, he contacted the Chief Probation Officer of Pike County, Susan Stuckey (Stuckey). Tr. at 13. Based on the information supplied by Officer Tharp, Stuckey agreed to do a probation check that same day. Stuckey went to Hensley`s home, accompanied by Officer Tharp and a second Petersburg Police Officer, Chad McClellan (Officer McClellan). Officer Tharp

assumed that because Robert and Hensley were married, they jointly owned the house and shared the bedroom. Tr. at 17. The police knew that Justin Williams, a former coworker of Robert`s, also had lived at the house. Tr. at 11, 23; Appellant's Br. at 3. Robert was not at the residence when the officers arrived. Stuckey told Hensley that the purpose of the visit was to do a home check, and Hensley allowed them into the house because Robert was on probation. Stuckey initially helped Hensley put away her dogs, and as the two talked, Stuckey learned that only Hensley slept in the bedroom, and Robert slept in the living room. When Officers Tharp and McClellan entered the home, they did not perform a safety sweep, nor did they inquire as to who owned or lived in the home; instead, they immediately began to search. While searching in the bedroom, Officer Tharp flipped the mattress and found a can containing a green, leafy substance, which was later determined
3

to be marijuana. He then opened Pam Hensley`s underwear drawer [and] in a ring box found an unknown tablet that was later identified by a pharmacist to be a generic form of Xanax. Appellant's App. at 90. In her deposition, Stuckey testified that it was not common in a probation check to look under mattresses or to search in a probationer`s wife`s underwear drawer. Id. at 84, 90-91. No firearms were found during the search. Stuckey, who had started her probation search at the front of the house, followed probation protocol and looked for anything in plain view, but saw nothing illegal or suspicious. Tr. at 26. Upon reaching the bedroom, Stuckey looked at the disarray in the bedroom and believed it had been ransacked. Id. Having found the marijuana and generic Xanax pill, the police obtained a search warrant and, thereafter, found rolling papers, a one[-]hitter pipe, and two prescription bottles--one with the name Jack Onyett and one with the name Pam Bailey. Appellant's App. at 56, 58. Based on the evidence obtained, the State charged Hensley with the following drug-related charges: (1) possession of a schedule IV controlled substance3 as a Class D felony; (2) possession of a legend drug without a prescription, 4 a Class D felony; (3) maintaining a common nuisance5 as a Class D felony; (4) possession of marijuana6 as a Class A misdemeanor; and (5) possession of paraphernalia7 as a Class A misdemeanor.
3

See Ind. Code

Download Pamela J. Hensley v. State of Indiana.pdf

Indiana Law