Jennifer L. Harrell, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Jennifer Harrell appeals a condition of her probation that was imposed following her guilty plea, alleging that the condition is unconstitutional. Concluding that the condition of probation does not unduly infringe upon Harrell's constitutional rights, we affirm.

Facts and Procedural History

[2] In 2023, Jennifer Harrell was charged with dealing in methamphetamine, a Level 3 felony, after she sold the illegal substance to a confidential informant during a controlled drug buy. She entered an open plea to the charge, and the trial court sentenced her to nine years with one year suspended to probation.

[3] Among the terms of Harrell's conditions of probation is that she submit to random drug screens and waive any objection to the admissibility of the results of such screens in any future bond or probation revocation proceeding. She now appeals that condition of her probation.

Discussion and Decision

[4] Harrell contends that the condition of probation requiring her to waive objection to the admissibility of drug test results in future revocation proceedings intrudes upon her constitutional right to due process.¹ The specific condition of Harrell's probation requires:

6. You shall submit to random drug screens and/or alcohol breathalyzer tests, pay the costs of these tests, and waive any objection to the admissibility of the results of these tests in bond and probation revocation proceedings.

Appellant's App. Public Vol. II, p. 206.

[5] Probation is not a right to which a defendant is entitled but rather a favor pursuant to which a defendant agrees to abide by specific conditions to avoid imprisonment. Mathews v. State, 907 N.E.2d 1079, 1081 (Ind. Ct. App. 2009). Although limited by the principle that the conditions of probation be reasonably related to the rehabilitation of the defendant and the protection of the public, trial courts enjoy broad discretion in determining the appropriate conditions of a defendant's probation. McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007), trans. denied.

[6] And within certain parameters, a condition of probation may impinge upon the probationer's exercise of an otherwise constitutionally protected right. Rexroat v. State, 966 N.E.2d 165, 172 (Ind. Ct. App. 2012) (quoting Smith v. State, 727 N.E.2d 763, 767 (Ind. Ct. App. 2000)), trans. denied. Where, as here, the defendant challenges a condition of probation as unduly intrusive on a constitutional right, we must evaluate that claim by balancing the following factors: (1) the purposes to be served by probation, (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be enjoyed by probationers, and (3) the legitimate needs of law enforcement. Rexroat, 966 N.E.2d at 172 (quoting Smith v. State, 779 N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied). We will address each factor in turn.

[7] First, as with all probationers, there are two purposes for Harrell's probation: rehabilitation of Harrell and protection of the community. See Weida v. State, 94 N.E.3d 682, 685 (Ind. 2018) (noting that purposes of probation are rehabilitating probationer and protecting public). Harrell pleaded guilty to dealing in methamphetamine for selling the drug to a confidential informant. The evidence further showed that, during the transaction, Harrell also smoked methamphetamine. Tr. Vol. 2, p. 69. Accordingly, both purposes of probation are served by testing Harrell for drug use. And the additional term calling for waiver of objection to the admissibility of those test results further aids in preventing a recurrence of Harrell's criminal behavior.

[8] Second, it is well established that probation conditions “ ‘may impinge upon a probationer's right to exercise an otherwise constitutionally protected right because probationers simply do not enjoy the freedoms to which ordinary citizens are entitled.’ ” Weida, 94 N.E.3d at 691 (quoting Patton v. State, 990 N.E.2d 511, 515 (Ind. Ct. App. 2013)).

[9] In support of her argument, Harrell cites Patton v. State, 580 N.E.2d 693 (Ind. Ct. App. 1991), trans. denied. There, the challenged probation condition required Patton to waive objection to the admissibility of polygraph examination results in any subsequent court proceeding without limitation. In other words, the polygraph results could be used not only in revocation proceedings but also in future criminal prosecutions. Observing that polygraph results are generally inadmissible in a criminal prosecution because they have not been found to be scientifically reliable, we held that the probation condition was inappropriate because it provided for the unrestricted admissibility in any future court proceeding of evidence that otherwise would be inadmissible. Id. at 698-99.

[10] Yet, Patton is distinguishable from this case. First, Patton dealt with the admission of polygraph examination results, which are generally inadmissible in a criminal prosecution. Here, drug test results are at issue, and Harrell makes no argument that such test results are inherently unreliable like polygraph examination results have been shown to be.

[11] Second, the objectionable language in Patton's probation condition was the admissibility of the polygraph results in any subsequent court proceeding (i.e., criminal prosecutions). Subsequent cases have reiterated our holding in Patton, struck the portion of the probation condition providing that results of a polygraph are admissible in any future court proceedings, and clarified that polygraph results are admissible in probation revocation proceedings because they are not adversarial criminal proceedings but civil matters requiring more flexible procedures. See Carswell v. State, 721 N.E.2d 1255, 1266 (Ind. Ct. App. 1999); Hoeppner v. State, 918 N.E.2d 695, 700 (Ind. Ct. App. 2009). Unlike the probation conditions in Patton, Carswell, and Hoeppner, Harrell's condition of waiver for the admissibility of her drug test results does not encompass a subsequent criminal trial. Rather, her agreement to waive objections is specifically limited to the admission of such evidence at bond and probation revocation proceedings where procedures are more relaxed.

[12] Indeed, “[i]t is well settled that probationers are not entitled to the full array of constitutional rights afforded defendants at trial.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). While a probation revocation hearing has certain due process requirements, it is not to be equated with an adversarial criminal proceeding. Id. at 549-50. “Rather, it is a narrow inquiry, and its procedures are to be more flexible.” Id. at 550. This flexibility is necessary to permit the court to exercise its inherent power to enforce obedience to its lawful orders. Id. And, because of this flexibility, strict rules of evidence do not apply in probation revocation hearings. Id.; see also Ind. Evidence Rule 101(d)(2) (providing that rules of evidence do not apply in proceedings relating to probation or parole). Therefore, in probation revocation hearings, judges may consider any relevant evidence bearing some substantial indicia of reliability, and this includes reliable hearsay. Cox, 706 N.E.2d at 551.

[13] Harrell asserts that this condition of probation nullifies her right to have evidence admitted only if it bears an indicia of substantial trustworthiness. However, once the State presents its evidence, nothing precludes Harrell from presenting evidence of her own and challenging the validity of the tests and their results. And the trial court then has the duty to weigh the evidence and determine its probative value. In other words, Harrell's agreement to the admissibility of the test results does not prevent her from contesting the weight the court should assign them.

[14] Moreover, Harrell's waiver of objection to the admissibility of her test results does not automatically result in a probation violation. To be sure, the State must still prove that a probation violation has in fact occurred. See Ind. Code § 35-38-2-3(f) (providing that State must prove probation violation by preponderance of evidence).

[15] Third, besides selling methamphetamine, Harrell also smoked methamphetamine. Accordingly, the State has a strong and compelling interest in monitoring Harrell's behavior and preventing her from engaging in similar behavior and accumulating more convictions in the future.

[16] Thus, in balancing these factors, we cannot say that the condition of probation that Harrell challenges here unduly infringes upon her constitutional rights. See, e.g., Cox, 706 N.E.2d at 550 n.8 (acknowledging that urine test results constituted hearsay but concluding that use in probation revocation hearing of results of regular urinalysis report prepared by company whose professional business it is to conduct such tests did not deny probationer due process).

Conclusion

[17] Based upon the foregoing, we conclude that Harrell's condition of probation requiring her to waive any objection to the admissibility of drug test results in any future bond or probation revocation proceedings is not unduly intrusive on her constitutional rights.

[18] Affirmed.

FOOTNOTES

1.   While the State does not raise the issue in this case, we note a split on our Court concerning the waiver of appellate review of probation conditions when the defendant fails to object to the conditions at sentencing. In Delgado v. State, 246 N.E.3d 1276, 1290 (Ind. Ct. App. 2024), trans. denied, a panel of this Court acknowledged the split and cited cases on both sides of the issue. Ultimately, the Delgado panel agreed with the reasoning in Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007), trans. denied, where we concluded that an appeal of a probation condition is similar to the appeal of a sentence in that this Court reviews the claim without it first being presented to the trial court. The Delgado panel also observed that their conclusion is bolstered by our Supreme Court's decision in Spells v. State, in which the court held that “[n]o objection was required to preserve a challenge to [the defendant's] fine, because a fine, like restitution, is part of the sentence.” 225 N.E.3d 767, 771 n.5 (Ind. 2024). See also Scott v. State, 258 N.E.3d 298, 300-01 (Ind. Ct. App. 2025) (noting that in Delgado this Court applied Spells in probation context to find that probation conditions are part of sentence and therefore concluded that Delgado did not waive appellate review despite not objecting to conditions).

Robb, Senior Judge.

Altice, C.J., and Mathias, J., concur