FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MELISSA J. HALEY GREGORY F. ZOELLER

Ripstra Law Office Attorney General of Indiana

Jasper, Indiana

NICOLE M. SCHUSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

PAMELA J. HENSLEY, )

)

Appellant-Defendant, )

)

vs. ) No. 63A01-1105-CR-195

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

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 
2

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 

 

1 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. 

2

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‖). 
3

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 
4

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 

substance3as a Class D felony; (2) possession of a legend drug without a prescription,4a 

Class D felony; (3) maintaining a common nuisance5as a Class D felony; (4) possession

of marijuana6as a Class A misdemeanor; and (5) possession of paraphernalia7as a Class 

A misdemeanor. 

 

3

See Ind. Code § 35-48-4-7(a).

4

See Ind. Code § 35-43-10-3.

5

See Ind. Code § 35-48-4-13(b)(2)(B).

6

See Ind. Code § 35-48-4-11.

7

See Ind. Code § 35-48-4-8.3(b).
5

Prior to trial, Hensley filed a motion to suppress the evidence seized during the 

search of her home. A hearing was held, and the trial court considered the parties‘ briefs 

and the published depositions of Officers Tharp and Stuckey before entering an order 

denying Hensley‘s motion to suppress. The trial court certified the order for interlocutory 

appeal, and this court accepted Hensley‘s interlocutory appeal. Hensley now appeals. 

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Hensley contends that the warrantless search of her home was illegal 

under the Fourth Amendment to the United States Constitution and, as such, that the 

evidence found during the search should have been suppressed. Specifically, she argues 

that the trial court abused its discretion by admitting the evidence obtained during the 

search because: (1) ―[s]he was not the person on probation‖; (2) ―the search exceeded the 

scope and regulatory scheme of a probation search‖; and (3) ―the search was merely a 

pretext to conduct an investigatory search without first securing a warrant.‖ Appellant’s 

Br. at 1. 

The Fourth Amendment to the United States Constitution provides that ―[t]he right 

of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated . . . .‖ Micheau v. State, 893 

N.E.2d 1053, 1059 (Ind. Ct. App. 2008), trans. denied (2009). The Fourteenth 

Amendment makes this protection applicable to actions by state officials. Allen v. State,

743 N.E.2d 1222, 1227 (Ind. Ct. App. 2001) (citing Elkins v. United States, 364 U.S. 206, 

213 (1960), trans. denied). ―[A] search arises out of an intrusion by a governmental actor 
6

upon an area in which a person maintains a  ̳reasonable expectation of privacy.‘‖ Holder 

v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Katz v. U.S., 389 U.S. 347, 361(1967) 

(Harlan, J., concurring)). A constitutionally protected reasonable expectation of privacy 

exists where there is both a subjective expectation of privacy and societal recognition that 

such expectation of privacy is reasonable. Id. at 936.

Generally, a search warrant is a prerequisite to a constitutionally proper search and 

seizure. Danner v. State, 931 N.E.2d 421, 428 (Ind. Ct. App. 2010), trans. denied.

However, the United States Supreme Court has determined that ―the  ̳special needs‘ of a 

probationary system, particularly the need to supervise probationers closely, justifie[s]

warrantless searches based on reasonable suspicion rather than probable cause.‖ State v. 

Schlechty, 926 N.E.2d 1, 3-4 (Ind. 2010), cert. denied, 131 S. Ct. 934(U.S. 2011) (citing 

Griffin v. Wisconsin, 483 U.S. 868, 873–74 (1987)). 

In Schlechty, our Supreme Court, citing to the reasoning of the United States

Supreme Court, noted the two different ways in which a probation search may be 

analyzed under the Fourth Amendment:

[A] warrantless probation search under Griffin may be justified on the basis 

of reasonable suspicion to believe a probation violation has occurred

because, among other things, supervision of probationers is necessary to 

ensure that probation restrictions are in fact observed, and that the 

community is not harmed by the probationer being at large. Griffin, 483 

U.S. at 873–75 []. By contrast, under [United States v.] Knights, [534 U.S. 

112 (2001)], even if there is no probationary purpose at stake, a warrantless 

search may be justified on the basis of reasonable suspicion to believe that 

the probationer has engaged in criminal activity and that a search condition 

is one of the terms of probation.
7

926 N.E.2d at 6 (emphasis added). A ―probationer‘s home, like anyone else‘s, is 

protected by the Fourth Amendment‘s requirement that searches be  ̳reasonable.‘‖ 

Bonner v. State, 776 N.E.2d 1244, 1248 (Ind. Ct. App. 2002) (citing Griffin, 483 U.S. at 

873).

The concept of ― ̳affording probationers lesser protections is predicated on the 

premise that probation officers, or police working with probation officers, are conducting 

searches connected to the enforcement of conditions of probation and not for normal law 

enforcement purposes.‘‖ Allen, 743 N.E.2d at 1127-28 (quoting Polk v. State, 739 

N.E.2d 666, 669 (Ind. Ct. App. 2000)). The State cites to Griffin in support of its position 

that this search did not violate the Fourth Amendment. 

In Griffin, the United States Supreme Court upheld the constitutionality of a 

warrantless search performed by a probation officer pursuant to a state 

regulation that authorized such searches on the basis of reasonable 

suspicion and articulated factors to be considered in determining the 

existence of reasonable suspicion. See 483 U.S. at 872–80. The Court 

concluded that the ―special needs‖ of the probationary system, particularly 

the need to supervise probationers closely, justified warrantless searches

based on reasonable suspicion rather than probable cause. See id. at 875

(noting ―[s]upervision, then, is a  ̳special need‘ of the State permitting a 

degree of impingement upon privacy that would not be constitutional if 

applied to the public at large.‖). Accordingly, the Court determined that the 

search of the probationer‘s residence was reasonable within the meaning of 

the Fourth Amendment because it was conducted pursuant to a valid 

regulation governing probationers. 

Schlechty, 926 N.E.2d at 3-4.

We begin by noting that the officers in Griffin searched the probationer‘s 

residence after receiving a tip that the probationer had a handgun. Unlike the facts in this 

case, the tipster in Griffin was a reliable source, and the search in Griffin was ―carried out 
8

entirely by the probation officers under the authority of Wisconsin‘s probation 

regulation.‖ Griffin, 483 U.S. at 871. Here, the State does not cite to a probation 

regulation; instead, it contends that the ―record in this case supports the trial court‘s 

determination that this was a probation search, not an investigatory search, and that it was 

reasonable.‖ Appellee’s Br. at 7. Our review of the record leads us to a different 

conclusion. 

Officer Tharp testified that he received a tip from an unnamed source, who 

claimed that Robert had marijuana. Officer Tharp took no action based on this tip. 

About three weeks later, Officer Tharp received a tip that Robert had a firearm. Officer 

Tharp had not previously obtained information from this tipster and did not know his 

truthfulness; nevertheless, he contacted Stuckey. Based on the information supplied by 

Officer Tharp, Stuckey agreed to conduct a probation search of Robert‘s residence and 

agreed that Officers Tharp and McClellan could join her. Upon arriving at the residence, 

Stuckey announced to Hensley that the officers were there to do a probation search, and 

Hensley let the three officers into her home. 

Officers Tharp and McClellan entered the house with Stuckey, but immediately 

began their own search while Stuckey spoke with Hensley. It was at this point that 

Officer Tharp and Officer McClellan‘s search ceased being a search to determine whether 

Robert had committed a probation violation. While Hensley was telling Stuckey that she 

slept in the bedroom and Robert slept in the living room, the other officers were in 

Hensley‘s bedroom overturning the mattress and pulling items out of Hensley‘s dresser 

drawers. 
9

In her deposition, which was introduced at trial, Stuckey testified that the 

―standard[] for a home check for probation is that we can walk through the home and if 

[we] see, in plain view, evidence of illegal activity, then the house can be searched.‖ 

Appellant’s App. at 83 (emphasis added). Stuckey saw nothing in plain view, but while 

in the home, she was handed a tin by Officer Tharp that contained marijuana. Stuckey 

learned only later that the tin was found under Hensley‘s mattress. Stuckey testified that 

it was not standard practice in a probation search to look under a mattress and that she 

had not instructed the other officers to look under or in things. Id. at 94. She also 

testified that the disarray of the searched bedroom made her uncomfortable enough with 

the process that she left the home and stood outside while the officers completed their 

search. When asked why she was uncomfortable with the process, Stuckey testified: 

Because this is not the way that a probation home check is supposed to be 

handled. Judge Stratton, the judge that hired me, told me that a home check 

was not to be used as a back door for a warrant [] check.

Appellant’s App. at 87. From this testimony, it is clear that Stuckey did not think that the 

search followed the protocol of a probation search.

The record before us also supports the conclusion that Officer Tharp was not 

conducting a probation search. During the suppression hearing, Officer Tharp gave the 

following testimony:

Q. Is it common to do a probation search where the probationer is not 

even present?

A. The who?

Q. The, the individual on probation. The probationer.
10

A. Like I said, I don‘t know what they‘re, I don‘t know what they‘re, 

what they do down there at probation. I don‘t know what their, what 

they go by. What their standards are. Um, I believe they can search 

his residence anytime, whether he‘s there or not. In my opinion, I 

believe that‘s what it is.

. . . .

Q. But before you began searching, did you ask any specific questions 

regarding ownership?

A. Um, no.

Tr. at 16. 

This evidence reveals that the search was not conducted as a probation search, nor 

was it truly conducted for probation reasons. Instead, the police were pursuing their own 

agenda and conducted an investigatory search under the guise that it was a probationary 

search. The search was prompted by the police officers, not by the probation officer. 

Stuckey agreed that the police could join her in the search, as officers often do for the 

reason of safety. Instead of acting as Stuckey‘s backup, however, the police entered the 

home and left Stuckey alone with Hensley, without conducting a safety sweep of the 

home that purportedly contained a firearm. The police did not ask Hensley about the 

ownership of the home and failed to follow the lead of Stuckey, from whom they could 

have learned that Robert slept in the living room and not the bedroom. This search did 

not meet the guidelines for a valid search under Griffin. 

The State next contends that the search was proper under the analysis of Knights. 

Our Supreme Court analyzed Knights as follows:

[I]n [Knights], the United States Supreme Court expanded its holding in 

Griffin by declaring that searches performed in compliance with a search 

provision contained within a valid probation agreement may be 
11

constitutional even if they were not ―conducted by a probation officer 

monitoring whether the probationer is complying with probation 

restrictions.‖ Knights, 534 U.S. at 117. In Knights, the defendant was a 

probationer who challenged the constitutionality of the search of his home 

without a warrant. As a condition of probation, the defendant had signed a 

document that provided for police access to his ―person, property, place of 

residence, vehicle, personal effects, to search at anytime, with or without a 

search warrant, warrant for arrest or reasonable cause by any probation 

officer or law enforcement officer.‖ Id. at 114. The defendant argued that 

the search was unconstitutional because police did not have a ―special 

need‖ beyond normal law enforcement to support the warrantless search. 

Id. at 117–18. In essence the defendant argued the search was invalid 

because it was conducted for ―investigatory‖ rather than ―probationary‖ 

purposes. Id. at 116. A unanimous Court rejected this argument and

concluded that the probationer‘s acceptance of a clear and unambiguous 

search condition ―significantly diminished [the probationer‘s] reasonable 

expectation of privacy.‖ Id. at 119–20. . . . [T]he Court concluded that the 

search was reasonable under its general Fourth Amendment approach of 

examining the totality of the circumstances ―with the probation search 

condition being a salient circumstance.‖ Id. Ultimately the Court 

determined that the warrantless search of the probationer‘s home was

reasonable within the meaning of the Fourth Amendment because it was 

authorized by a condition of probation and supported by reasonable 

suspicion. Specifically the Court held ―[w]hen an officer has reasonable 

suspicion that a probationer subject to a search condition is engaged in 

criminal activity, there is enough likelihood that criminal conduct is 

occurring that an intrusion on the probationer‘s significantly diminished 

privacy interests is reasonable.‖ Id. at 121.

Schlechty, 926 N.E.2d at 4-5.

To qualify as a constitutional search under Knights, the police would have needed 

to have reasonable suspicion that Robert had engaged in criminal activity. In the State‘s 

response to Hensley‘s motion to suppress, the State makes no mention of the reasoning in 

Knights, nor does it contend that these unsubstantiated tips provided ―reasonable 

suspicion‖ to believe that Robert was engaging in criminal activity. Furthermore, the 

evidence found in Hensley‘s home was discovered under her bed and in her dresser 
12

drawer. Hensley was not on probation nor was she the person suspected of criminal 

activity. The search by Officer Tharp, which uncovered the marijuana and generic Xanax 

violated her Fourth Amendment right against unreasonable search and seizure under 

Knights.

8

We reverse the trial court‘s denial of Hensley‘s motion to suppress the evidence 

found during the search of her home, and remand for further action.

Reversed and remanded.

BARNES, J., and BRADFORD, J., concur.

 

8 Because we find that the search was unconstitutional under the Fourth Amendment, we do not 

reach Hensley‘s claim that the search was also unconstitutional under Article I, section 11 of the Indiana 

Constitution.