IN: In a probation search of one under home confinement, only common areas or def’s specific area can be searched; MJ and gun found in common area

Defendant was placed on home confinement as a result of his conviction, and there was a search waiver provision. He was living in someone else’s house. Assuming only the common areas and those under defendant’s specific control are subject to search and not the specific space of the host (which the court seemingly endorses), the search here was in a common area and was valid. Officers smelled burnt marijuana on entering and saw marijuana in plain view. A handgun was found in the common area. The search was valid under the totality of circumstances. McElroy v. State, 2019 Ind. App. LEXIS 424 (Sept. 25, 2019):

[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. Participation in such programs “involves the conditional release of a prisoner who would otherwise be subject to unrestricted searches” during his incarceration and is conditioned upon compliance with certain terms or conditions. Id. at 779. Accordingly, supervision of participants, including searches, is necessary to ensure compliance with the terms and to promote legitimate government interests. Id. The United States Supreme Court has repeatedly acknowledged that a state has an “overwhelming interest” in “reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees [that] warrant[s] privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.” Samson v. California, 547 U.S. 843, 853, 126 S. Ct. 2193, 2200, 165 L. Ed. 2d 250 (2006).

[15] Many jurisdictions acknowledge that non-participants who share a residence with conditional release participants assume the risk that they will have diminished Fourth Amendment rights in areas shared with the participant. See State v. Stanfield, 554 S.W.3d 1 (Tenn. 2018) (warrantless parole search extended to areas of residence shared by parolee and non-parolees and over which parolee had common authority); State v. Bursch, 905 N.W.2d 884 (Minn. Ct. App. 2017) (non-probationer who knowingly lives with probationer has diminished expectation of privacy in areas of residence shared with probationer); State v. Adams, 788 N.W.2d 619 (N.D. 2010) (due to terms of probation, non-probationer who chose to live with probationer had reduced expectation of privacy in their shared areas and possessions); People v. Pleasant, 19 Cal. Rptr. 3d 796 (Cal. Ct. App. 2004) (persons who live with probationers cannot reasonably expect privacy in areas of residence shared with probationers, including areas within common authority of probationer and fellow occupants and areas that probationer “normally had access”); State v. Davis, 965 P.2d 525 (Utah Ct. App. 1998) (where probationer lives with non-probationer, probation searches present considerable peril to non-probationer’s Fourth Amendment rights because authority to search probationer’s residence extends to areas jointly controlled with other occupants of residence); Milton v.State, 879 P.2d 1031 (Alaska Ct. App. 1994) (in case of shared residence, non-probationer retains limited expectation of privacy in his person, possessions, and residence; probation search may extend to all areas of residence over which probationer has control, even if control is not exclusive); and State v. West, 517 N.W.2d 482 (Wis. 1994) (non-parolee’s reasonable expectation of privacy in apartment she jointly occupied with parolee was limited such that parole search could extend to all areas and contents in which parolee had common authority).