IN: Probation search targeting wife of probationer was invalid; probation officer was truly stalking horse

Use of defendant’s husband’s probation status to conduct a “probation search” led by the police was unreasonable and violated Griffin and Knights. Hensley v. State, 962 N.E.2d 1284 (Ind. App. 2012):

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.

. . .

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 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.