ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Glen E. Koch II

Boren Oliver & Coffey, LLP

Martinsville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff,

v.

Braeden Terrell,

Appellee-Defendant

July 10, 2015

Court of Appeals Case No.

55A01-1501-CR-9

Appeal from the Morgan Circuit 

Court

The Honorable Matthew G. Hanson, 

Judge

Case No. 55C01-1410-CM-1502

Crone, Judge.

Case Summary

[1] Braeden Terrell was placed on probation and was ordered not to possess or 

consume alcoholic beverages and not to possess firearms as conditions of his 

probation. As another condition of his probation, he waived “any and all” of 

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his search and seizure rights under state and federal law and agreed to submit to 

reasonable searches of his property or residence at any time by a probation 

officer. State’s Ex. 2. During a home visit, a probation officer found alcoholic 

beverages in Terrell’s kitchen and searched his nightstand for firearms and 

found marijuana and paraphernalia.

[2] The State charged Terrell with class B misdemeanor marijuana possession and 

class A misdemeanor paraphernalia possession. Terrell filed a motion to 

suppress the contraband, arguing that the search of the nightstand was 

unconstitutional under the Fourth Amendment of the U.S. Constitution and 

Article 1, Section 11 of the Indiana Constitution. The trial court granted the 

motion, finding that the search of the nightstand “went well beyond the scope 

of the reasonable searches up to that point.” Appellant’s App. at 15.

[3] The State appeals, claiming that the trial court erred in granting Terrell’s 

motion to suppress. We agree. With respect to the Fourth Amendment, Terrell 

waived his search and seizure rights and agreed to submit to searches of his 

property and residence, and the search of the nightstand for firearms was not 

unreasonable. And as for Article 1, Section 11, the search was reasonable 

under the totality of the circumstances. Therefore, we reverse and remand.

Facts and Procedural History

[4] In August 2014, Terrell was convicted in Hendricks County of class A 

misdemeanor operating a vehicle while intoxicated with endangerment and 

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placed on probation. On August 12, Terrell signed an order with the following 

probation conditions:

7. You shall not leave the State of Indiana and agree to waive 

extradition to the State of Indiana and to appear before the Court 

when so ordered by the Court.

....

9. You shall permit the Probation Officer and any Law Enforcement 

Officer assisting the Probation Officer to enter your residence and to 

ask reasonable questions about your activities. You shall sign a waiver 

to the search of your person or property when requested by the 

Probation Officer.

10. You shall not consume, or possess on your person or in your 

residence, any controlled substance (illegal drug) or drug 

paraphernalia, except as prescribed to you by a licensed physician. 

You shall submit to alcohol and drug tests when requested by the 

Probation Department or any Law Enforcement Officer....

11. You shall not possess any firearm, destructive device, or 

dangerous weapon on your person, in your residence, or in your 

vehicle.

....

You shall not consume, or possess on your person or in your 

residence, any alcoholic beverages, or enter into any establishment 

where alcoholic beverages are the primary product for sale. This 

includes all liquor stores, bars, taverns, and pubs.

You shall be evaluated by a DMHA Certified substance abuse 

program within forty-five (45) days of today. You shall successfully 

complete and pay for any program referred by your Probation Officer.

State’s Ex. A.

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[5] On August 27, Terrell signed a form entitled “Fourth Amendment Waiver of 

Rights as Condition of Probation,” which reads in pertinent part as follows:

Probationer specifically waives any and all rights as to search and 

seizure under the laws and Constitution of both the United States and 

the State of Indiana during his/her period of probation. Probationer 

agrees to submit to reasonable search and seizure of his/her person, 

property, vehicle, residence, and any other property under his/her 

control, at any time, by any Probation Officer, and any Law 

Enforcement Officer accompanying the Probation Officer.

....

Probationer is informed of his/her Fourth Amendment rights and 

hereby knowingly and intentionally waives those rights to the extent 

provided in this waiver as a condition of probation.

State’s Ex. 2.1

[6] Also on that date, Terrell admitted to his probation officer, Cheryl Koch, that 

he had consumed alcohol four days earlier at a bachelor party in Tennessee that 

he had received court permission to attend. Koch told him that she would not 

file a probation violation notice because he had not yet received substance 

abuse treatment.

1 The form also provides, “Probationer waives his/her Sixth Amendment right to consult with an attorney 

prior to signing this waiver of rights to search.” State’s Ex. 2. Terrell objected to this provision at the 

suppression hearing, but the trial court did not address the issue in its order. In his appellate brief, Terrell 

asserts that the Sixth Amendment of the U.S. Constitution and Article 1, Section 13 of the Indiana 

Constitution “guarantee the right of a person to have an attorney during criminal proceedings” and that 

“[i]nsofar as [he] was ordered to attend the probation meeting and ordered to sign the waiver without 

counsel, it violated his aforementioned rights.” Appellee’s Br. at 8 n.1. Other than the constitutional clauses 

themselves, Terrell cites no authority for this assertion.

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[7] In supervising Terrell’s probation, Koch monitored his Facebook posts. On 

September 28, she saw a post indicating that Terrell was at a bar in downtown 

Indianapolis.2

 Based on these alcohol-related issues, Koch decided to conduct a 

home visit “[t]o see if [Terrell] was in compliance with his rules[.]” Tr. at 23.

[8] Around 1:00 p.m. on October 2, Koch arrived at Terrell’s home in Martinsville 

with probation officer Andrew Lillpop. Terrell allowed the officers inside. 

Terrell’s girlfriend and a housecleaner were also in the home. Koch saw an 

almost empty whiskey bottle on the kitchen counter. She opened the 

refrigerator and found a case of beer inside. She also saw bottles of alcohol and 

cups beside the refrigerator.

[9] Lillpop administered a portable breath test, which indicated that Terrell had not 

consumed alcohol. Lillpop then asked Terrell if “there were any dangerous 

weapons in the residence[.]” Id. at 34. Terrell said that “there were some in his 

safe [...] in his bedroom.” Id. at 35. Lillpop asked Terrell to show him the safe. 

According to Lillpop,

[Terrell] took me back into the back bedroom I open[ed] the door or he 

open[ed] the door and he showed me where the guns were and the safe 

was locked there was an empty one there was one on top in a pouch 

and he had told me that that one wasn’t working so I pulled that one 

out set it on the bed had Mr. Terrell go back into the front room so 

that I could look since I was looking I didn’t want them standing over 

my shoulder for safety purposes. Um and then I looked in the 

nightstand and found marijuana and then at that time I immediately 

2 The record does not support the State’s assertion that Terrell posted a photograph of himself inside the bar.

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stopped the search left the marijuana there in the nightstand and um I 

called dispatch and Morgan County Sheriff’s department came out to 

assist.

Id. at 36. Lillpop searched the nightstand because it was a “common[]place to 

hide a firearm[.]” Id. at 37. He also found marijuana paraphernalia in the 

nightstand.

[10] The State charged Terrell with class A misdemeanor paraphernalia possession 

and class B misdemeanor marijuana possession. Terrell filed a motion to 

suppress “all items seized in this case because the search that preceded the 

seizure was made without any suspicion that [he] possessed controlled 

substances, and was simply an investigatory probation search, impermissible 

under [Article 1, Section 11] of Indiana’s Constitution as well as the 4th 

Amendment” of the U.S. Constitution. Appellant’s App. at 12. After a 

hearing, the trial court issued an order granting Terrell’s motion to suppress, 

finding that “the search of the dresser/nightstand revealing suspected marijuana 

went well beyond the scope of the reasonable searches up to that point.” Id. at 

15. The State now appeals.

Discussion and Decision

[11] “The State has the burden of demonstrating that the measures it used to seize 

the information or evidence were constitutional.” State v. Augustine, 851 N.E.2d 

1022, 1025 (Ind. Ct. App. 2006).

When appealing the grant of a motion to suppress, the State appeals 

from a negative judgment and must show the trial court's ruling was 

contrary to law. This Court will reverse a negative judgment only 

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when the evidence is without conflict and all reasonable inferences 

lead to a conclusion opposite that reached by the trial court. We 

neither reweigh the evidence nor judge the credibility of the witnesses, 

and we consider only the evidence most favorable to the judgment.

Id. (citations omitted). “[T]he ultimate determination of the constitutionality of 

a search or seizure is a question of law that we consider de novo.” Carpenter v. 

State, 18 N.E.3d 998, 1001 (Ind. 2014).

[12] “Both the Fourth Amendment to the United States Constitution and Article [1], 

Section 11 of the Indiana Constitution require in general that searches should 

be conducted pursuant to a warrant supported by probable cause.” Schlechty v. 

State, 926 N.E.2d 1, 3 (Ind. 2010) (footnotes omitted), cert. denied (2011).

3 “And 

both this jurisdiction and the federal courts have recognized various exceptions 

to the warrant requirement.” Id. The State contends that Lillpop’s warrantless 

search of Terrell’s nightstand did not violate either constitution. We address 

each in turn.

Section 1 – The search of the nightstand did not violate

the Fourth Amendment of the U.S. Constitution.

[13] “The fundamental purpose of the Fourth Amendment is to protect the 

legitimate expectations of privacy that citizens possess in their persons, their 

3 See U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but 

upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, 

and the persons or things to be seized.”); IND. CONST. art. 1, § 11 (“The right of the people to be secure in 

their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and 

no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing 

the place to be searched, and the person or thing to be seized.”).

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homes, and their belongings.” Montgomery v. State, 904 N.E.2d 374, 377-78 

(Ind. Ct. App. 2009), trans. denied. In Vanderkolk v. State, No. 79S04-1411-CR718, 2015 WL 3608834 (Ind. June 9, 2015), a Fourth Amendment case that was 

decided after this appeal was fully briefed, the Indiana Supreme Court held that 

probationers “who have consented or been clearly informed that the conditions 

of their probation ... unambiguously authorize warrantless and suspicionless 

searches, may thereafter be subject to such searches during the period of their 

probationary ... status.” Id., slip op. at *4. Here, Terrell waived “any and all 

rights as to search and seizure” under state and federal law and agreed to 

submit to “reasonable search and seizure” of his property or residence at any 

time by any probation officer. State’s Ex. 2. In his motion to suppress, Terrell 

argued that the search of the nightstand was unconstitutional because it was not 

based on suspicion that he possessed controlled substances. But under 

Vanderkolk, this is no longer a valid objection to the search. The question before 

us is simply whether the search was “reasonable.” See id. (waiver form); 

Schlechty, 926 N.E.2d at 6 (“[A]ll government searches, whether or not 

conducted pursuant to voluntary consent, must be ‘reasonable.’”).

[14] Depending on the terms of a probationer’s consent, in many cases only the 

method of execution, and not the scope, of the search would be subject to a 

reasonableness challenge. Cf. Schlechty, 926 N.E.2d at 6-7 (“For example the 

Fourth Amendment would not condone the indiscriminate ransacking of a 

probationer’s home at all hours, or the pumping of his or her stomach, simply 

because a probation term included a search condition.”). The voluntariness of 

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the consent could be considered questionable in light of a probationer’s

negligible bargaining power and the Hobson’s choice of either signing the 

consent form or going to prison.

4

 But unless and until our supreme court limits 

Vanderkolk or further defines its parameters, we must conclude that where, as 

here, a probationer has waived any and all of his search and seizure rights and 

agreed to submit to searches of his property and residence at any time by a 

probation officer, a nondestructive daytime search of the probationer’s 

nightstand for firearms is not unreasonable under the Fourth Amendment.

Section 2 – The search of the nightstand did not violate

Article 1, Section 11 of the Indiana Constitution.

[15] The purpose of Article 1, Section 11 of the Indiana Constitution “is to protect 

from unreasonable police activity those areas of life that Hoosiers regard as 

private.” State v. Quirk, 842 N.E.2d 334, 339-40 (Ind. 2006). “The provision 

must receive a liberal construction in its application to guarantee the people 

against unreasonable search and seizure.” Id. at 340. Under the Indiana 

Constitution, the legality of a search depends on whether government conduct 

4 A Hobson’s choice is “an apparently free choice that is really no choice at all.” Gray v. State, 841 N.E.2d 

1210, 1218 (Ind. Ct. App. 2006), trans. denied. In the civil context, a “‘standardized contract ... imposed and 

drafted by the party of superior bargaining strength [that] relegates to the subscribing party only the 

opportunity to adhere to the contract or reject it’” is called an adhesion contract. Sanford v. Castleton Health 

Care Ctr., LLC, 813 N.E.2d 411, 417 (Ind. Ct. App. 2004) (quoting Pigman v. Ameritech Pub., Inc., 641 N.E.2d 

1026, 1035 (Ind. Ct. App. 1994)), trans. dismissed (2006). An adhesion contract is unconscionable and 

therefore unenforceable if it is “such as no sensible man not under delusion, duress or in distress would make, 

and such as no honest and fair man would accept.” Id. (citation, quotation marks, and alteration omitted). 

One could argue that consent-to-search forms signed by probationers bear many similarities to 

unconscionable adhesion contracts, but that concept thus far has no parallel in criminal law.

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was reasonable under the totality of the circumstances. Tuggle v. State, 9 N.E.3d 

726, 735 (Ind. Ct. App. 2014), trans. denied.

[16] In prior cases, the Indiana Supreme Court has stated that the reasonableness of 

a search “turns on a balance of: 1) the degree of concern, suspicion, or 

knowledge that a violation has occurred; 2) the degree of intrusion the method 

of the search or seizure imposes on the citizen’s ordinary activities; and 3) the 

extent of law enforcement needs.” Id. (citing Litchfield v. State, 824 N.E.2d 356, 

359 (Ind. 2005)). “[T]here may well be other relevant considerations under the 

circumstances.” Litchfield, 824 N.E.2d at 361. In light of Vanderkolk’s 

expansive endorsement of warrantless and suspicionless probation searches 

under the Fourth Amendment, it is questionable whether a separate Litchfield

analysis is required here. Unless and until our supreme court specifically says 

otherwise, however, we shall continue to follow existing precedent and balance 

the three Litchfield factors and other relevant considerations in determining the 

reasonableness of probation searches under the Indiana Constitution.

[17] Regarding the first factor, Lillpop’s suspicion that a firearm might be in the

nightstand was purely conjectural, but Terrell had waived any and all of his 

search and seizure rights and agreed to submit to searches of his property and 

residence. As for the second factor, the degree of intrusion on Terrell’s ordinary 

activities was substantial, but he was on probation and had agreed to submit to 

the search as a condition of his probation. And finally, regarding the extent of 

law enforcement needs, even Terrell concedes that “the courts have a high 

degree of need to monitor probationers,” Appellee’s Br. at 16, and he cites no 

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relevant authority for his assertion that Lillpop was obligated to stop searching 

for firearms after he found a probation violation. When the factors are 

balanced and Terrell’s consent to the search is taken into account, we conclude 

that the search of the nightstand was not unreasonable under the totality of the 

circumstances and therefore did not violate Article 1, Section 11 of the Indiana 

Constitution. Consequently, we reverse the trial court’s grant of Terrell’s 

motion to suppress and remand for further proceedings.

[18] Reversed and remanded.

Brown, J., and Pyle, J., concur.

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